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Hughes  on  Federal  Jurisdiction  and  Procedure  (2d  Ed.). 

Jaggard  on   Torts.     2  Vols. 

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Smith's  Elementar>'  Law. 

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C11517— b 


.^v 


HANDBOO 


j^v 


OF 


INTERNATIONAL  LAW 


BY 
GEORGE  GRAFTON  WILSON 

Professor   of    International    Law  in    Harvard    University.    Lecturer   on 

International  Law  in  Brown  University  and  in  the  United  States 

Naval  War  College,  American  Delegate  Plenipotentiary 

to  the  International  Naval  Conference,  Associe 

de  rinstitut  de  Droit  International 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  COMPANY 
1910 


OOPTBIGHT,    1910 
BY 

WEST  PUBLISHING  CO. 

(Wlls.Int.L.) 


PREFACE 


The  calling  of  the  Peace  Conference  which  assembled  at  The 
Hague  in  1899  marked  an  epoch  in  International  Law.  The 
work  of  this  Conference  has  been  amplified  and  extended  in 
many  directions  by  the  Conference  for  the  Revision  of  the 
Geneva  Convention  in  1906,  by  the  Second  Hague  Peace  Con- 
ference in  1907,  and  by  the  International  Naval  Conference 
of  1908-1909. 

Thus,  after  nearly  three  hundred  years  from  the  founda- 
tions laid  by  Grotius,  "the  father  of  International  Law,"  in 
1625,  there  rises  a  worthy  structure  and  in  a  single  decade  the 
advance  made  in  centuries  is  surpassed.  Where  earlier  writ- 
ers referred  to  philosophical  or  religious  sanctions  to  fortify 
their  expression  of  hope  that  justice  might  prevail  among  the 
nations,  the  writers  of  the  present  day  refer  to  the  sanction 
of  international  conventions  embodying  the  realization  of 
these  hopes.  Hubner,  a  century  and  a  half  ago,  suggested  an 
international  prize  court ;  in  1907  a  convention  for  establish- 
ing such  a  court  was  drawn  up,  and  is  a  typical  example  of  the 
modern  realization  of  the  hopes  of  the  early  writers. 

Many  of  the  matters  formerly  receiving  much  attention  in 
texts  on  International  Law  are  now  mainly  of  historical  inter- 
est. New  problems  have  arisen.  The  states  of  the  world 
have  been  drawn  nearer  through  improved  means  of  trans- 
portation and  communication.  The  security  of  trade  routes 
is  demanded.  New  means  of  transportation  and  communica- 
tion have  made  necessary  a  consideration  of  rights  of  aerial 
domain.  Minor  political  unities  have  acquired  status.  Spheres 
of  influence  receive  attention.  Economic,  ethnic,  and  other 
unities  have  demanded  a  measure  of  recognition.  The  indi- 
vidual has  gained  a  new  place.  "No  longer  does  strange  air 
make  a  man  unfree." 

The  treaties  of  the  early  part  of  the  nineteenth  century  re- 
lated mainly  to  peace,  amity,  boundaries,  navigation,  and  com- 

(y) 


Vi  PKEFACE. 

mercc.  The  treaties  of  recent  years  regulate  trade-marks, 
copyrights,  postal  service,  naturalization,  extradition,  arbitra- 
tion, wireless  telegraphy,  condominium,  leased  territory,  and 
other  matters  showing  the  closer  interdependence  and  changed 
relations  of  modern  states. 

It  is  the  aim  of  this  Handbook  of  International  Law  to  set 
forth  as  far  as  space  permits  the  historical  development  of 
the  principles  of  international  law.  Owing  to  the  numerous 
and  recent  modifications  of  earlier  views,  particular  attention 
is  also  given  to  those  principles  as  they  are  at  present  inter- 
preted. Law  in  international  relations  is  more  and  more  tak- 
ing the  place  of  war,  and  war  itself,  on  land  and  more  recently 
on  the  sea.  has  been  brought  under  law.  Diplomatic  negotia- 
tion has  gained  in  importance  and  accordingly  has  been  given 
a  more  extended  treatment.  As  far  as  possible,  the  texts  of 
documents,  treaties,  and  cases  have  been  inserted,  rather  than 
lengthy  and  perchance  misleading  descriptions  of  their  con- 
tents or  nature,  and  late  precedents  and  illustrations  have  been 
freely  used.  The  appendices  contain  certain  of  the  most  im- 
portant international  documents. 

The  author  desires  particularly  to  testify  to  the  great  as- 
sistance which  he  has  received  from  that  unrivaled  source- 
book for  the  precedents  and  practice  of  the  United  States,  the 
International  Law  Digest  of  Professof  John  Bassett  Moore. 
The  works  of  text-writers  and  other  valuable  books  to  which 
most  frequent  reference  has  been  made  are  mentioned  in  the 
bibliography,  and  the  author  acknowledges  his  indebtedness  to 
these  and  to  many  others  mentioned  in  the  footnotes. 

G.  G.  W. 


TABLE  OF  CONTENTS 


INTRODUCTION. 

INTERNATIONAL  LAW. 

Section  Page 

1.  Definition   of   Public  International   Law 8-6 

2.  Place  of  "Private  International  Law" 6 

3.  Development  of  International  Law 7-9 

4.  Sources  of  International  Law 9-14 

5.  Force  of  International  Law 15-17 


Part  I 

PERSONS  IN  INTERNATIONAL  LAW 


CHAPTER  I. 

PERSONS  IN  INTERNATIONAL  LAW. 

6.  Status    21 

7.  States  in  International  Law 22 

8.  Definition   of   State 22-24 

9.  Acquisition   of    International    Status 24-25 

10.  Recognition  of  International   Status 26-31 

11.  Persons  Having  Limited   Status 31 

12.  States  Outside  the  Family  of  Nations 32 

13.  Neutralized    States 32-33 

14.  Members  of  Political  Unions 33-35 

15.  Protected    States 35-39 

16.  Belligerents    39 

17.  Recognition  of  Belligerency 40— l^i 

18.  Insurgents     43^9 

19.  Loss  or  Modification  of  Status 49-52 

Wils.Int.L.  (vii) 


Vlll  TABLE  OF  CONTENTS. 


Part  II 
GENERAL  RIGHTS  AND  OBLIGATIONS 


CHAPTER  II. 

EXISTENCE,  INDEPENDENCE  AND  EQUALITY. 

Section  Page 

20.  Right  Of   Existence 55 

21.  Right    of    Self-Preservation 55-56 

22.  Right  of  Independence 56-57 

23.  Duty    of    Noninten-ention 57-65 

24.  Policy  of  Intervention 66-73 

25.  Right  of   Equality 73-75 


CHAPTER  III. 

PROPERTY  AND  DOMAIN. 

26.  Property  76-78 

27.  Domain     78-79 

28.  Acquisition  of  Territorial  Domain 79-85 

29.  Maritime  and  Fluvial  Domain 85-87 

30.  Aerial    Domain 87-90 


CHAPTER  IV. 

JURISDICTION. 

31.  Jurisdiction    91-92 

32.  Jurisdiction  over  Territory  and  Property— General .. .       92-93 

33.  Joint    Jurisdiction 93-95 

34.  Leased    Territory   95-97 

35.  Maritime  and  Fluvial  Jurisdiction — Marginal  Seas...       97-99 

36.  Sti-aits     99-100 

37.  Gulfs  and  Bays 100-103 

38.  Inland  Seas  and  Lakes 103-105 

39.  Rivers    105-107 

40.  Navigation     108-115 

41.  Fisheries    115-117 

42.  Vessels    117-120 


TABLE   OF   CONTENTS.  IX 

Section  Page 

43.  A6rlal    JurlBdiction 120-124 

44.  Jurisdiction  over  Persons — Nationals 125 

45.  Acquisition    of    Nationality 126-135 

46.  Expatriation    135-136 

47.  Protection  of  Nationals 136-143 

48.  Aliens    143-145 

49.  Extradition    145-147 

50.  Exemptions  from  Jurisdiction 147-150 

51.  Extraterritorial    Jurisdiction 151-152 

52.  Servitudes    153-154 


Part  III 
INTERCOURSE  OF  STATES 


CHAPTER  V. 

DIPLOMATIC  RELATIONS. 

53.  The  Head  of  the  State  in  International  Relations 157-158 

54.  Department  of  Foreign  Affairs 158-159 

55.  Diplomatic    Agents 159-162 

56.  Appointment    162-164 

57.  The  Right  of  Legation 164-166 

58.  Suite  of  Diplomat 166 

59.  Credentials,  etc.,  of  Diplomat 166-168 

60.  Commencement  of  Mission 168-169 , 

61.  Privileges  and  Prerogatives  of  Diplomat 169-176 

62.  Diplomatic    Functions 176-178 

63.  Termination  of  Diplomatic  Mission 178-180 


CHAPTER  VI. 

CONSULAR  AND   OTHER  RELATIONS. 

64.  Consuls    181-182 

65.  Functions  of  Consular  Officers 182-184 

66.  Appointment  and  Reception  of  Consuls 184^186 

67.  Termination  of  Consular  Office 186-187 

68.  Immunities  and  Privileges  of  Consular  Officers 187-190 

69.  Other  State  Agents 190 


TABLE   OF   CONTENTS. 


CHAPTER  VII. 

TREATIES  AND  OTHER   INTERNATIONAL  AGREEMENTS. 
Section  Pa(?e 

70.  Treaty   Defined 191 

71.  Other  Agreements  between  States 192-194  y 

72.  E}ssentials  of  a  Valid  Treaty 194-195  "^ 

73.  Form  of  the  CJontract 195-197 

74.  Ratification    197-199 

75.  Interpretation    199-202 

76.  Most  Favored  Nation  Clause 202-205 

77.  Treaties  of  Guaranty 205-207 

78.  Operation  of  a  Treaty 207-209 

79.  Termination    209-212 

SO.  Continuation    212-213 


Part  IV 
INTERNATIONAL  DIFFERENCES 


CHAPTER  VIII. 

AMICABLE    MEANS    OF    SETTLEMENT    OF    INTERNATIONAL 
DIFFERENCES. 

81.  Nature  of  International   Differences 217 

82.  Negotiation    218 

83.  Good  Offices  and  Mediation 218-220 

84.  Commissions  of  Inquiry 220-221 

85.  Arbitration     221-226 

86.  Award    227-22S 

CHAPTER  IX. 

NON-AMICABLE   MEASURES    OF   REDRESS   SHORT   OF   WAIt. 

87.  Non-Amicable  Measures  of  Redress 229 

88.  Breaking  of  Diplomatic  Relations 229-230 

89.  Retorsion 230-231 

90.  Reprisals    231-232 

91.  Embargo     232-233 

92.  Non-Intercourse    233 

93.  Display  or  Restricted  Use  of  Force 233-234 

94.  Pacific    Blockade 235-237 


TABLE   OF   CONTENTS.  XI 

PartV 

WAR 

CHAPTER  X. 


NATURE  AND  COMMENCEMENT. 
Section  Page 

95.  War    Defined 241-24-' 

96.  Kinds  of  War 24.3-244 

97.  Object  of   War 244-24.") 

98.  Commencement     24.5-24B 

99.  Declaration 246-248 

100.     Date  of  Commencement 248-249 


CHAPTER  XI. 

AREA    AND    GENERAL    EFFECT    OF    BELLIGERENT    OPERA- 
TIONS. 

101.  Area    250 

102.  General    Effect 250-253 


CHAPTER  XII. 

RIGHTS   AND  OBLIGATIONS   DURING   WAR. 

103.  Obligations  of  Belligerents 254-255 

104.  Neutral  Duty  of  Abstention 256-258 

105.  Neutral  Duty  of  Prevention 258-262 

106.  Neutral  Obligation  of  Toleration 262-263 

107      Neutral  Duty  of  Regulation 263-270 

108.     Civil  Rights  and  Remedies  During  War 270-272 


CHAPTER  XIII. 

PERSONS  DURING  WAR. 

109.  Pei'sons  within  Belligerent  Jurisdiction 273 

110.  Combatants  and  Noncombatants 273-276 

111.  Neutral    Individuals 277 


XU  TABLE   OF   CONTENTS. 


CHAPTER  XIV. 

PROPERTY  ON  LAND. 
Section  Page 

112.  Public  Property  During  War — Immovable  Public  Prop- 

erty       278-279 

113.  Movable  Public  Pi-operty 279-281 

114.  Property  of  Municipalities  and  Institutions 281 

115.  Immovable  Private  Property 281-282 

116.  Movable  Property  of  Military  Use 282-283 

117.  Private  Property  in  Enemy  Jurisdiction 283-284 

118.  Booty    : 284 


CHAPTER  XV. 

PROPERTY  ON  THE  WATER. 

119.  Public  Property  of  Belligerents  on  the  Water— Vessels  285-286 

120.  Goods    , 286 

121.  Private  Property  of  Belligerents  on  the  Water — Vessels  286-287 

122.  Vessels  Exempt  by  Senice 287-288 

123.  Vessels  Exempt  by  Occupation 288-289 

124.  Vessels  Exempt,  by  Delai  de  Faveur 289-290 

125.  Goods  in  General 290-295 

126.  Means  of  Telegraphic  Communication 296-298 


CHAPTER  XVI. 

MARITIME  CAPTURE. 

127.  Maritime    Capture 299-300 

128.  Title  to   Prize 300 

129.  Treatment  of  Prize— Conducting  to  Port 300-302 

130.  Release    302-303 

131.  Appropriation   and  Destruction 304-308 

132.  Prize  Money  and  Bounty 309-310 

133.  Privateers    310-312 

134.  Volunteer,  Auxiliary,  or  Subsidized  Vessels 312-316 

CHAPTER  XVII. 

RULES  OF  WAR. 

135.  Regulation  of  Belligerent  Action 317-310 

136.  Prohibited    Means 319-322 


TABLE   OF   CONTENTS.  XIU 

Section  Page 

137.  Prohibited  Methods 322-323 

138.  Special    Regulations— Bombardment 323-324 

139.  Submarine  Mines  and  Torpedoes 324-326 

140.  Discharge  of  Projectiles  and  Explosives  from  Bal- 

loons      326-327 

141.  Spies    327-328 


CHAPTER  XVIII. 

MILITARY  OCCUPATION  AND  GOVERNMENT. 

142.  Military    Occupation 329^^331 

143.  Military    Government 331-334 

144.  Exercise  of  Military  Authority  in  Occupied  Territory  334-338 

145.  Martial  Law 339-340 

146.  Military  Law,  Courts-Martial,  etc 340-341 

147.  Cessation  of  Military  Control 341-343 


CHAPTER  XIX. 

PRISONERS.  DISABLED,  AND  SHIPWRECKED. 

148.  Prisoners  of  War 344-345 

149.  Treatment  of  Prisoners  of  War 345-348 

150.  Release  of  Prisoners 348-353 

151.  Sick,  Wounded,  and  Shipwrecked 353-356 


CHAPTER  XX. 

NON-HOSTILE  RELATIONS  BETWEEN   BELLIGERENTS. 

152.  Non-Hostile  Relations  between  Belligerent  Forces....  3.57 

153.  Flags  of  Truce 357-358 

154.  Capitulations 358-359 

155.  Armistices     360 

156.  Operation  of  Armistices 361-362 

157.  Cartels    362-3^3 

158.  Safe-conducts  and   Passports 364 

159.  Safeguards    364 

160.  Licenses  to  Trade 365 


XIT  TABLE   OF   CONTENTS. 


CHAPTER  XXI. 

TERMINATION  OF  WAR. 
Sfction  Fag* 

161.  Methods  of  Termination 366 

162.  Conquest    360-368 

163.  Effect  of  Conquest 36S-372 

164.  Cessation  of  Hostilities 373-374 

165.  Effect  of  Cessation  of  Hostilities 374-375 

166.  Treaty  of  Peace 375 

167.  Scope  of  a  Treaty  of  Peace 376-377 

168.  Effect  of  a  Treaty  of  Peace 377-379 

169.  Proclamation    379 

170.  Postliminium    379-380 

171.  Amnesty    881 


Part  VI 
RELATION  OF  NEUTRALS 


CHAPTER  XXII. 

NATURE    OF   NEUTRALITY. 

172.  Neutrality  Defined 385-386 

173.  Development    386-391 

1 74.  Neutralization    391-393 

175.  Declaration     393-394 

176.  Divisions     395-396 


CHAPTER  XXIII. 
VISIT  AND  SEARCH. 

177.  Visit  and  Search 397 

178.  The  Exercise  of  the  Right 397-399 

179.  Method  of  Visit  and  Search 399-401 

180.  Exemption  from  and  Limitation  of  Risbt 401-402 

181.  Convoy     402-403 

182.  Grounds  of  Capture 404-405 

183.  Transfer  of  Property 40(>-409 

184.  Treatment  of  Captured  Vessels 409-412 

185.  Destruction  or  Appropriation  of  Property  at  Sea 412—417 


TABLE   OF   CONTENTS.  XT 


CHAPTER  XXIV, 

CONTRABAND. 
Section  Page 

186.  Contraband  Defined 418-420 

187.  Contraband    Classified 420-430 

188.  Liability  to  Seizure 430^32 

189.  Penalty  for  Carriage 432-437 

190.  Pre-emption    437-438 


CHAPTER  XXV. 

BLOCKADE. 

19L     Blockade  Defined 439-440 

192.  Places  That  may  be  Blockaded 440^42 

193.  Establishment  of  a  Blockade 442-443 

194.  Notification     444-446 

195.  Vessels  in  Blockaded  Port 446-447 

196.  Maintenance    447-449 

197.  Termination    449-451 

198.  Violation     451-452 

199.  Penalty  for  Violation 453 

200.  Period  of  Liability  for  Violation 454r-458 


CHAPTER  XXVI. 

CONTINUOUS  VOYAGE. 

201.  Continuous    Voyage 459-468 

CHAPTER  XXVII. 

UNNEUTRAL  SERVICE. 

202.  Unneutral   Service  Defined 469^70 

203.  Scope    470-474 

204.  Penalty    474-476 

CHAPTER  XXVIII. 

PRIZE. 

205.  Prize    477-^78 

206.  National    Prize  Court 478-480 

207.  International  Prize  Court 480-4S2 


XVi  TABLE   OF   CONTENTS. 


APPENDICES 


APPENDIX  I. 

Pag* 
Declaration  of  Paris,  April  16,  1856 487 


APPENDIX  II. 

Instructions  for  the  Government  of  Armies  of  the  United  States 
In  the  Field,  April  24,  1863 488 


APPENDIX  III. 

Geneva  Convention  for  the  Amelioration  of  the  Condition  of  the 
Wounded  in  Armies  in  the  Field,  July  6,  1906 508 


APPENDIX  IV. 

Hague  Conventions  of  1907. 

Final  Act  of  the  Second  International  Peace  Conference..   515 

Convention  for  the  Pacific  Settlement  of  International  Dis- 
putes      519 

Convention  Respecting  the  Laws  and  Customs  of  War  on 
Land 53o 

Convention  Respecting  the  Rights  and  Duties  of  Neutral  Povp- 
ers  and  Persons  in  Case  of  War  on  Land 546 

Convention  for  the  Adaptation  to  Naval  War  of  the  Prin- 
ciples of  the  Geneva  Convention 549 

Convention  Relative  to  the  Creation  of  an  International 
Prize   Court 554 

Convention  Concerning  the  Rights  and  Duties  of  Neutral 
Powers  in  Naval  War 563 

Draft  Convention  Relative  to  the  Creation  of  a  Court  of 
Arbitral  Justice 568 


APPENDIX  V. 
Declaration  of  London,   February  26,   1909 574 


BIBLIOGRAPHY 


For  convenience  of  reference  a  brief  bibliography  is  Inserted.  An 
extended  bibliography  may  be  found  in  1  Moore,  International  Law 
Digest,  pp.  Lx-xxx. 


Alvarez,  A.     Droit  International  Americain,  1909. 
American  Journal  of  International  Law,  1907 — 
Annuaire  de  l'Institut  de  Droit  International,  1877 — 
Ariga,   N.     La  Guerre  Sino-Japonaise  au  point  de  vue  du 
droit  international,  1896. 
La  Guerre  Russo-Japonaise  au  point  de  vue  continental  et 
le  droit  international,  1908. 
Atherley-Jones,  L.  a.     Commerce  in  War,  1907. 
Bello,  a.    Principios  de  Derecho  Internacional,  2  vols.,  1883. 
Bluntschli,  J.  C.     Le  droit  international  (Lardy),  1895. 
Bonfils.     Droit  International  Public  (Fauchille),  1898. 
Bordwell,  p.     Law  of  War,  1908. 
Butler,  C.  H.     Treaty-Making  Power  of  the  United  States, 

2  vols.,  1902. 
Bynkershoek,  C.  v.     De  Foro  Legatorium,  1721. 

Ouestionum  Juris  Public,  1737. 
Calvo,  Ch.     Droit  International,  5e  ed.,  6  vols.,  1896. 
CoBBETT,  Pitt.     Leading  Cases  and  Opinions  on  International 

Law,  3d  ed.,  1909. 
Dahlgren,  J.  A.     Maritime  International  Law,  1877. 
Davis,  G.  B.     The  Elements  of  International  Law,  3d  ed., 

1908. 
Despagnet.     Droit  International  Public,  3e  ed.,  1905. 
Deuxieme  Conference  Internationale  de  la  Paix,  3  vols., 

The  Hague,  1907. 
Duer,  J.     Law  and  Practice  of  Maritime  Insurance,  2  vols., 

1845-46. 
Fauchille,  P.     Du  Blocus  Maritime,  1882. 
Ferguson,  J.  H.     Manual  of  International  Law,  2  vols.,  1884. 
WiLS.lNT.L— b  (xvii) 


Xvili  BIBLIOGRAPHY. 

Field,  D.  D.     Outline  of  an  International  Code,  1876. 
FiORE,  P.     Noveau  Droit  International  Public,  Trad.  Antoine, 

3  vols.,  1885-86. 
FocLix,  J.  J.  G.     Traite  du  Droit  International  Prive,  2  vols., 

1866. 
Foster,  J.  W.     A  Century  of  American  Diplomacy  (1776- 
1876),  1901. 
American  Diplomacy  in  the  Orient,  1903. 
The  Practice  of  Diplomacy,  1906. 
Gessxer,  L.     Neutres  sur  Mer,  1875. 
Glass,  H.     Marine  International  Law,  1884. 
Glexn,  E.  F.     Hand  Book  of  International  Law,  1895. 
Grotius,  H.     De  Jure  Belli  ac  Pacis,  3  vols.,  Whewell,  1853. 
Hall,  W.  E.    International  Law,  5th  ed.,  1904  ;   6th  ed.,  1909. 
Halleck,  H.  W.     Elements  of   International  Law,  4th   ed., 

2  vols.     Baker,  1908. 
Heffter,   a.   G.     Das   Europiiische  V51kerrecht   der  Gegen- 

wart,  8th  ed.,  Gefifcken,  1888. 
Hershey,  a.    S.     International   Law  and   Diplomacy  of  the 

Russo-Japanese  War,  1906. 
Hertslet,  E.     Map  of  Europe  by  Treaty,  1815-1891,  4  vols., 

1875-1891. 
HiGGixs,  A.  P.     The  Hague  Peace  Conferences,  1909. 
HoLLAXD,  T.  E.     British  Admiralty  Manual  of  the  Law  of 
Prize,  1888. 
Studies  in  International  Law,  1898. 
Letters  on  War  and  Neutrality,  1909. 
HoLLS,  F.  W.     The  Peace  Conference  at  The  Hague,  1900. 
HosACK,  J.     Rise  and  Growth  of  the  Law  of  Nations,  1882. 
Hull,  W.  I.     The  Two  Hague  Conferences,  1908. 
Interxational  Law   Situations  axd  Discussioxs,  U.   S. 

Naval  War  College,  1901— 
Jourxal  du  Droit  Interxational  Prive  et  de  la  Juris- 
prudence COMPAREE,  1871 — 
Kent,  J.     Commentaries  on  American  Law,  14th  ed. 
Commentary  on  International  Law,  Abdy,  1878. 
Kleen,  R.     Lois  et  Usages  de  la  Neutralite,  2  vols.,  1896- 

1900. 


BIBLIOGRAPHY.  XIX 

Lawrence,  T.  J.     Principles  of  International  Law,  2d  ed., 
1900;   3d  ed.  1905. 
War  and  Neutrality  in  the  Far  East,  2d  ed.,  1904. 
Lehr,  E.     Manuel  des  Agents  Diplomatiques  et  Consulaires, 

1888. 
Magoon,  C.  E.     Law  of  Civil  Government  under  Military 

Occupation,  1902. 
Maine,  H.     International  Law,  2d  ed.,  1894. 
Martens,  Chas.  de.     Le  Guide  Diplomatique,  1866. 
Martens,  F.  de.     Traite  de  Droit  International,  3  vols.,  1883- 

1887. 
MaurEL,  M.     De  la  Declaration  de  Guerre,  1907. 
Maurice,    J.    F.     Hostilities    without    Declaration    of    War 

(1700-1870),  1883. 
Merignhac,  a.     Traite  de  Droit  International  Public,  2  vols., 

1905-1907. 
Moore,  J.  B.     Extradition  and  Interstate  Rendition,  2  vols., 
1891. 
International  Arbitration,  6  vols.,  1898. 
American  Diplomacy,  Its  Spirit  and  Achievements,  1905. 
A  Digest  of  International  Law,  8  vols.,  1906. 
Nys,  E.     Le  Droit  International,  3  vols.,  1904. 
Les  Origines  du  Droit  International,  1894. 
Oppenheim,  L.     International  Law,  2  vols.,  1905-06. 
Ortolan,  T.    Diplomatie  de  la  Mer,  4th  ed.,  2  vols.,  1864. 
Owen,  D.     Declaration  of  War,  1889. 

Perels,    F.     Manuel    de    Droit    Maritime    International    par 
Arendt,  1884. 
Ofifentliche  Seerechts  der  Gegenwart,  2te  aufl.,  1903. 
Phillimore,  R.     International  Law,  3d  ed.,  1889. 
Pille:t,  a.     Les  Lois  actuelles  de  la  Guerre,  1901. 
Piggott,  F.     Nationality,  1907. 

Exterritoriality,  2d  ed.,  1907. 
PoMEROY,  J.  N.     International  Law  in  Times  of  Peace,  1886. 
Pradier-Foderb,    p.     Traite   de    Droit    International    Public 
Europeen  et  Americain,  8  vols.,  1885-1906. 
Cours  de  Droit  Diplomatique,  2  vols.,  2d  ed.,  1899. 
PuEendorF,  S.     Law  of  Nature  and  Nations,  English  trans., 
1703. 


XX  BIBLIOGRAPHY. 

ReddawaYj  W.  F.     The  Monroe  Doctrine. 

Revue  de  Droit  Internatioxae  et  de  Legislation  Com- 

PAREE,  1869— 
Revue  Generale  de  Droit  International  Public,  189J: — 
RiviER,  A.     Principes  du  Droit  des  Gens,  2  vols.,  1896. 
RoscoE,  E.  S.     English  Prize  Cases,  2  vols.,  1905. 
Schuyler,  E.     American  Diplomacy,  1886. 
Scott,  J.  B.     Cases  on  International  Law,  1902. 

Texts  of  the  Peace  Conferences  at  The  Hague  1899  and 
1907-1908. 
Smith,  F.  E.,  and  Sibley,  N.  W.     International  Law  during 

the  Russo-Japanese  War,  1905. 
Snow,  F.     Cases  and  Opinions  on  International  Law,  1893. 
American  Diplomacy,  1894. 

International  Law,  Naval  War  College,  2d  ed.,  prepared 
by  Stockton,  1898. 
Story,  J.     Commentaries  on  the  Conflict  of  Laws,  5th  ed. 
Stowell,  E.  C.     Consular  Cases  and  Opinions,  1909. 
Takahashi,  S.     Cases  on  International  Law,  Chino- Japanese, 
1896. 
International  Law  Applied  to  the  Russo-Japanese  War, 
1908. 
Taylor,  H.     International  Public  Law,  1901. 
Treaties  and  Conventions  betv/een  the  United  States 

AND  Other  Powers,  1776-1887. 
Treaties  in  Force,  Compilation  of  United  States.     1904. 
Tucker,  G.  F.     The  Monroe  Doctrine. 
Twiss,  Sir  T.     The  Law  of  Nations,  1875-1884. 
Ullmann,  G.     Volkerrecht,  1898. 

Van  Dyne,  F.     Citizenship  of  the  United  States,  1904. 
Law  of  Naturalization  of  the  United  States,  1907. 
Vattel,  E.     Law  of  Nations,  Trans.  Ingraham,  1876. 
Walker,  T.  A.     Science  of  International  Law,  1893. 
Manual  of  Public  International  Law,  1895. 
History  of  the  Law  of  Nations,  vol.  1,  1899. 
Westlake,  J.     Chapters  on  Principles  of  International  Law, 
1894. 
International  Law,  2  vols.,  1904-07. 


BIBLIOGRAPHY.  XXI 

Wharton,  F.     Digest  of  International  Law,  3  vols.,  2d  ed., 
1887. 
Treaties  on  the  Conflict  of  Laws,  1881. 
Diplomatic  Correspondence  of  the  American  Revolution, 
6  vols.,  1880. 
Wheaton,  H.     History  of  the  Law  of  Nations,  1845. 
Elements  of  International  Law,  1836. 
Edited  by  Lawrence,  W.  B.,  1863. 
Edited  by  Dana,  R.  H.,  1865. 
Edited  by  Atlay,  4th  ed.,  1904. 
Wilson,  G.  G.,  and  Tucker,  G.  F.     International  Law,  5th 

ed.,  1910. 
WooLSEY,  T.  D.     International  Law,  6th  ed.,  1891. 
ZoRN,  A.     Das  Krieg^srecht  zu  Lande,  1906. 


TABLE  OF  ABBREVIATIONS 


The  Reports  and  Statutes  are  Cited  bt  Their  Familiab  Abbre- 
viations. 


A.  J.  I American  Journal  of  International  Law, 

Hertslet Hertslet's  Map  of  Europe  by  Treaty. 

Moore Aloore's  Digest  of  International  Law. 

Wils.Int.L,  (xxiii)  t 


INTRODUCTION 


WILS.INT.L.  (1)« 


HANDBOOK 

OF 

INTERNATIONAL  LAW 


INTRODUCTION. 

INTERNATIONAL  LAW. 

1.  Definition  of  Public  International  Law. 

2.  Place  of  "International  Private  Law." 

3.  Development  of  International  Law. 

4.  Sources  of  International  Law. 

5.  Force  of  International  Law. 

DEFINITION   OF   PUBLIC   INTERNATIONAL   LAW^. 

1.   Public  international  law  is  tlie  body  of  generally  accepted 
principles  governing  relations  among  states,  i 

International  law  is  a  growth  and  is  growing.  It  early  be- 
came evident  that  if  states  were  to  exist  in  proximity  there 
must  be  some  standards  which  should  regulate  their  conduct 
toward  one  another.  The  Egyptian  states  recognized  this  in 
ancient  times  and  made  treaties  with  their  neighbors.  Practice 
and  theory  contributed  to  the  establishment  of  principles. 
These  principles  were  from  time  to  time  added  to,  expanded, 
and  otherwise  modified.  Writers  attempted  to  find  a  basis  for 
certain  rules  of  state  action  in  the  laws  of  nature,  in  divine 
law,  in  Roman  law,  and  elsewhere.  Each  additional  sanction 
made  international  law  more  potent.     As   Professor  Moore 

1  Other  definitions  are  as  follows: 

International  law,  as  understood  among  civilized  nations,  may  be 
defined  as  consisting  of  those  rules  of  conduct  which  reason  deduces, 
as   consonant   to  justice,   from   the  nature  of   the   society   existing 

WiLS.lNT.L.  (3) 


4  INTERNATIONAL   LAW.  (§  1 

well  says :  "It  is  thus  apparent  that  from  the  beginning  the 
science  in  question  denoted  something  more  than  the  positive 
legislation  of  independent  states,  and  the  term  'international 
law,'  which  has  in  recent  times  so  generally  superseded  the 
earlier  titles,  serves  to  emphasize  this  fact.  It  denotes  a  body 
of  obligations  which  is,  in  a  sense,  independent  of  and  su- 
perior to  such  legislation."  ^ 

A  recog'nition  of  the  principles  of  international  law  is  re- 
garded as  fundamental  to  the  existence  of  a  state  in  the  mod- 
ern sense. 

In  1T96  Justice  Wilson  said :  "When  the  United  States  de- 
clared their  independence,  they  were  bound  to  receive  the  law 
of  nations,  in  its  modern  state  of  purity  and  refinement."  ' 

In  1824  an  act  of  the  United  States  Congress  in  regard  to 
land  definitely  provided  for  a  court  trial  "to  settle  and  deter- 
mine the  question  of  the  validity  of  title  according  to  the  law 
of  nations,  the  stipulations  of  any  treaty,"  etc.*     Referring  to 

among  independent  nations,  with  snch  definitions  and  modifications 
as  may  be  established  by  general  consent.    AVheat.  Int.  Law,  D,  23. 

The  aggregate  of  the  rules  which  Christian  states  acknowledge 
as  obligatory  in  their  relations  to  each  other,  and  to  each  other's 
subjects.  The  rules,  also,  which  they  unite,  as  in  treaties,  to  impose 
on  their  subjects,  respectively,  for  the  treatment  of  one  another, 
are  included  here,  as  being  in  the  end  rules  of  action  for  the  states 
themselves.     Woolsey,  Int.  Law  (6th  Ed.)  4. 

The  rules  of  conduct  regulating  the  intercourse  of  states,  i  iial- 
leck.  Int.  Law.  41. 

International  law  is  the  collection  of  recognized  facts  and  prin- 
ciples which  unite  different  states  into  a  juridical  and  humanitarian 
association,  and  which,  in  addition,  assures  to  the  citizens  of  the 
several  states  common  protection  in  the  enjoyment  of  the  general 
rights  pertaining  to  them  as  human  beings.  Bluntschli,  Droit  Inter- 
national, art.   1. 

International  law  consists  in  certain  rules  of  conduct  which  mod- 
ern civilized  states  regard  as  being  binding  on  them  in  their  re- 
lations with  one  another,  with  a  force  comparable  in  nature  and 
degree  to  that  binding  the  conscientious  person  to  obey  the  laws  of 
his  country,  and  which  they  also  regard  as  being  enforceable  by  ap- 
X»ropriate  means  in  case  of  infringement.     Hall,  Int.  Law  (5th  Ed.)  1. 

2  1  ^loore,  2. 

3  Ware,  Adm.  of  Jones,  v.  Hylton  et  al.,  3  Dall.  190,  2S1,  1  L 
Ed.  r.(>s. 

4  4  Stat.  53,  c.  173,  §  2. 


§  1)  DEFINITION    OF   PUBLIC   INTERNATIONAL   LAW.  5 

such  acts  the  Supreme  Court  in  1832  interpreted  "according 
to  the  law  of  nations"  as  according  to  "the  usage  of  civilized 
nations."  ° 

In  1815  Chief  Justice  ]\larshall  stated  the  position  of  inter- 
national law  in  an  opinion  which  has  been  often  cited : 

"The  law  of  nations  is  the  great  source  from  which  we  de- 
rive those  rules,  respecting  belligerent  and  neutral  rights, 
which  are  recognized  by  all  civilized  and  commercial  states 
throughout  Europe  and  America.  This  law  is  in  part  un- 
written and  in  part  conventional.  To  ascertain  that  which  is 
unwritten,  we  resort  to  the  great  principles  of  reason  and 
justice;  but,  as  these  principles  will  be  differently  understood 
by  different  nations  under  different  circumstances,  we  con- 
sider them  as  being,  in  some  degree,  fixed  and  rendered  stable 
by  a  series  of  judicial  decisions.  The  decisions  of  the  courts 
of  every  country,  so  far  as  they  are  founded  upon  a  law  com- 
mon to  every  country,  will  be  received,  pot  as  authority,  but 
with  respect.  The  decisions  of  the  courts  of  every  country 
show  how  the  law  of  nations,  in  the  given  case,  is  understood 
in  that  country,  and  will  be  considered  in  adopting  the  rule 
which  is  to  prevail  in  this."  ^ 

In  1894  Justice  Gray  said  in  the  case  of  Hilton  v.  Guyot: 

"International  law  in  its  widest  and  most  comprehensive 
sense — including  not  only  questions  of  right  between  nations, 
governed  by  what  has  been  appropriately  called  the  law  of 
nations,  but  also  questions  arising  under  what  is  usually  called 
private  international  law,  or  the  conflict  of  laws,  and  concern- 
ing the  rights  of  persons  within  the  territory  and  dominion 
of  one  nation,  by  reason  of  acts,  private  or  public,  done  within 
the  dominions  of  another  nation — is  a  part  of  our  law,  and 
must  be  ascertained  and  administered  by  the  courts  of  justice, 
as  often  as  such  questions  are  presented  in  litigation  between 
man  and  man,  duly  submitted  to  their  determination."  ^ 

In  the  case  of  The  Paquete  Habana,  decided  in  1900,  the 


B  United  States  v.  De  la  Maza  Arredondo  et  al.,  6  iPet.  691,  712,  8 
L.  Ed.  547.  .,     .■ 

6  Thirty  Hogsheads  of  Sugar  v.  Boyle,,  &  Craneh,  191,  198,  3  L. 
Ed.    701.  C.. 

7  159  U.  S.  113,  16  Sup.  Ct.  139,  40  L.  Ed.  95. 


6  INTERNATIONAL   LAW.  (§  2 

United  States  Supreme  Court  based  its  decision  exempting 
coast  fishing  vessels  from  capture  in  time  of  war  on  "an  an- 
cient usage  among  civilized  nations,  beginning  centuries  ago, 
and  gradually  ripening  into  a  rule  of  international  law."  " 

PLACE    OF    "INTERNATIONAL  PRIVATE   LAW." 

2.  "Private  international  la^p"  or  "international  private  la^" 
is  tlie  term  sometimes  applied  to  the  body  of  rules 
wliicli  regulate  private  rights  involving  the  conflicting 
jurisdiction  of  different  states.  The  proper  title  for 
the  branch  of  laxr  is  "Conflict  of  Laws."  This  body 
of  riiles  is  properly  a  part  of  municipal  laiv.s 

In  the  case  of  Hilton  v,  Guyot,  in  1894,  Justice  Gray  said: 
"In  case  of  conflict  of  laws,  comity  must  determine  the  ef- 
fect which  will  be  given  to  the  expression  of  the  will  of  a 
foreign  state.  'Comity,'  in  the  legal  sense,  is  neither  a  matter 
of  absolute  obligation  on  the  one  hand,  nor  of  mere  courtesy 
and  good  will  on  the  other.  But  it  is  the  recogfnition  which 
one  nation  allows  within  its  territory  to  the  legislative,  execu- 
tive, or  judicial  acts  of  another  nation,  having  due  regard 
both  to  international  duty  and  convenience,  and  to  the  rights 
of  its  own  citizens  or  of  other  persons  who  are  under  the  pro- 
tection of  its  laws."  ^° 


8  The  Paquete  Habana,  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed.  320. 

»  Private  international  law  is  not,  however,  a  part  of  International 
law  proper.  The  latter,  as  has  been  seen,  is  concerned  with  the 
relations  of  states ;  in  so  far  as  individuals  are  affected,  they  are 
affected  only  as  members  of  their  states.  Private  international 
law,  on  the  other  hand,  is  merely  a  subdivision  of  national  law.  It 
derives  its  force  from  the  sovereignty  of  the  states  administering 
it;  it  affects  only  the  relations  of  individuals  as  such;  and  it  con- 
sists in  the  rules  by  which  courts  determine  within  what  national 
jurisdiction  a  case  equitably  falls,  or  by  what  national  law  it  is 
just  that  it  shall  be  decided.     Hall,  Int.  Law  (5th  Ed.)  52. 

10  159  U.  S.  113,  10  Sup.  Ct.  139,  40  L.  Ed.  95. 


§  3)  DEVELOPMENT    OF   INTERNATIONAL,   LAW. 


DEVELOPMENT    OF   INTERNATIONAL    LAW. 

3.  The  body  of  rules  noi7  knoivn  as  international  la^v  lias 
been  of  slotir  groMrtb,  and  bas  particularly  developed 
since  tbe  early  days  of  tbe  sixteenth  century. 

Some  of  the  practices  which  became  customary,  and  sub- 
sequently were  recognized  as  rules  of  international  law,  ap- 
peared very  early.  The  ancient  records  of  the  East  show  cer- 
tain usually  observed  rules  of  intercourse  between  states.  A 
degree  of  uniformity  of  diplomatic  procedure  was  developed 
in  Greece.  The  spread  of  commerce  in  the  Mediterranean 
Sea  made  necessary  commercial  comity.  This  gradually  hard- 
ened into  law.  There  appear  remains  of  the  early  maritime 
law  of  Rhodes  in  Justinian's  Digest.^^ 

Rome  at  first  contributed  rather  to  the  body  of  interna- 
tional private  law  than  to  the  field  of  public  international  law. 
Rome,  however,  in  the  jus  feciale  prescribed  certain  rules  for 
the  declaration  of  war  and  the  negotiating  of  treaties.  The 
conception  of  jus  gentium  varied  with  the  development  of 
European  civilization  and  was  differently  interpreted  by  dif- 
ferent writers.  According  to  Justinian,  "that  law  which  nat- 
ural reason  has  established  among  all  men,  that  which  is 
especially  regarded  by  all,  is  called  'jus  gentium.'  "  ^^  The 
early  idea  at  Rome  seemed  to  be  that  jus  gentium  was  the 
body  of  law  in  accord  with  the  general  reason  of  mankind. 
As  the  modern  conception  of  state  did  not  exist,  it  is  evident 
that  the  idea  of  jus  gentium  was  not  used  in  the  sense  of  the 
modern  term,  "international  law,"  but  rather  in  the  sense  of 
a  body  of  law  common  to  all  mankind,  because  necessary  for 
ordinary  intercourse  of  man  with  man  as  regards  selling,  let- 
ting, hiring,  partnerships,  etc. 

The  term  "jus  naturale"  was  a  philosophical  concept,  held 
by  the  Greek  philosophers,  which  was  popularized  at  Rome 
and  came  to  be  regarded  as  the  foundation  of  all  true  law. 
Jus  naturale  was  the  law  in  harmony  with  the  inherent  forces 

11  Digest  of  Justinian,  14,  2. 

12  Institutes  of  Justinian,  I,  2,  1. 


8  INTKKNATIONAL    LAW.  (§  3 

of  the  universe.  ^^  Jus  naturale  was  frequently  identified  with 
jus  gentium. 

The  idea  of  a  law  of  nature  strongly  influenced  early  writ- 
ers in  the  field  of  what  was  later  called  "international  law." 
and  the  titles  of  early  treatises  often  contain  the  term  "jus 
naturale,"  or  "jus  gentium,"  or  even  both.^* 

Such  writers  as  Victoria  (1480-1546),  Brun  (1491-15G3), 
Belli  (1502-1575).  Vasqucz  (1509-1566),  Ayala  (1548-1584), 
Saurez  (1548-1617).  Gentilis  (1552-1608),  usually  look  to 
some  such  broad  philosophical  basis  as  a  support  for  their 
arguments.^-'' 

Grotius  (1583-1645).  whose  great  contribution  to  interna- 
tional law,  "De  Jure  Belli  ac  Pacis,"  in  1625.  marks  a  new 
epoch  in  the  development  of  the  science,  recognizes  the  weight 
of  jus  naturale.  He  defines  it  as  "the  dictate  of  right  reason, 
indicating  that  any  act,  from  its  agreement  or  disagreement 
with  rational  nature,  has  in  it  moral  turpitude  or  moral  neces- 
sity, and  consequently  such  act  is  either  forbidden  or  enjoined 
by  God,  the  author  of  nature."  ^^ 

The  emphasis  upon  the  idea  of  natural  law  led  to  the  de- 
velopment of  a  school  of  "Naturalists."  These  were  opposed 
by  the  "Positivists,"  basing  their  ideas  of  international  law 
on  customs  and  treaties.  Between  the  extremes  were  those 
who  recognized  the  value  of  both  theory  and  precedent,  who 
regarded  themselves  as  exponents  of  the  doctrines  of  Grotius. 

Not  merely  the  thought  and  philosophy  of  the  period  before 
the  middle  of  the  sixteenth  century,  but  the  course  of  events 
also,  had  taught  men  some  lessens.  "The  world  empire  of 
Rome  showed  a  common  political  sovereignty  by  which  the 
acts  of  remote  territories  might  be  regulated ;  the  world  re- 
ligion of  the  Church  of  the  middle  period  added  the  idea  of  a 
common  bond  of  humanity.     Both  of  these  conceptions  im- 

13  Id.  I,  2,  2. 

14  Fufendorf.  De  Jure  Naturre  et  Gentium.  1G72. 

15  Brun.  De  Legationibus,  1548;  Belli,  De  re  Militari,  15G3 ;  Vas- 
quez.  Illustrium  Controversarium,  15G4;  Ayala,  De  .Jure  et  Otfieiis 
Bellicis  et  Dlsciplina  Militari,  15S2;  Suarez,  Tractatus  de  Legibu.s 
ac  Deo  Legislatore,  1012;  Gentilis,  De  Legationibus,  158-5,  De  Jure 
Belli.  1588. 

10  De  Jure  Belli  ac  Pacis.  bk.  I,  c.  1,  §  10. 


§  4)  SOURCES   OF   INTERNATIONAL   LAW.  9 

bued  men's  minds  with  the  possibility  of  a  unity,  but  a  unity 
in  which  all  other  powers  should  be  subordinate  to  a  single 
power,  and  not  the  unity  of  several  sovereign  powers  acting 
on  established  principles.  The  feudal  system  emphasized  the 
territorial  basis  of  sovereignty.  The  Crusades  gave  to  the 
Christian  peoples  of  Europe  a  knowledge  and  tolerance  of  one 
another  which  the  honor  of  the  code  of  chivalry  made  more 
beneficent,  while  the  growth  of  the  free  cities  opposed  the 
dominance  of  classes,  feudal  or  religious.  The  fluctuations 
and  uncertainties  in  theory  and  practice  of  international  inter- 
course, both  in  peace  and  war,  made  men  ready  to  hear  the 
voice  of  Grotius."  ^^ 

From  the  Peace  of  Westphalia,  1648,  the  modern  idea  of 
the  state  and  of  international  law  became  more  and  more  de- 
veloped. Zouch  (1590-1660),  Professor  of  Roman  Law  at 
Oxford,  distinguished  between  "jus  gentium"  and  "jus  inter 
gentes,"  the  Law  of  Nations.  Bentham  (1748-1832)  proposed 
the  term  "International  Law,"  which  is  now  generally  ac- 
cepted. 

SOURCES    OF    INTERNATIONAL    LAW. 

4.    (a)    In  the  narrow  sense  the  chief  sources  of  international 
laiv  are: 

(1)  Custom. 

(2)  Treaties  and  other  interstate  agreements. 

(3)  The    decisions    of   international   tribunals. 

(b)    In  a  broader  sense  there  are  also  included  in  the  sources 
of   international    law: 

(4)  Decisions  of  national  tribunals,  such  as  prize  courts. 

(5)  Opinions   of  text-w^riters. 

(6)  Diplomatic   papers. 

(1)  States  in  their  relations  to^  one  another  often  follow 
customs  which  have  never  been  formally  enacted  into  law. 
These  customs  are  tacitly  accepted  as  binding  upon  states  with 


17  Wilson  &  Tucker,  Int.  Law  (5th  Ed.)  18. 

For  the  general  development  of  international  law  as  Illustrated 
by  the  early  writer's,  see  Les  Fondateurs  du  Droit  International, 
Paris,   1904. 


10  INTERNATIONAL   LAW.  (§  4 

the  force  of  law.'^'  Sometimes  a  custom  or  usage  looks  back 
to  what  a  single  state  has  found  good  in  some  line  of  activity 
in  which  it  is  particularly  engaged.  As  was  said  in  the  case 
of  The  Scotia :  "Many  of  the  usages  which  prevail,  and  which 
have  the  force  of  law,  doubtless  originated  in  the  positive  pre- 
scriptions of  some  single  state,  which  were  first  of  limited 
effect,  but  which,  when  generally  adopted,  became  of  universal 
obligation.  The  Rhodian  law  is  supposed  to  have  been  the 
earliest  system  of  maritime  rules.  It  was  a  code  for  Rhodians 
only;  but  it  soon  became  of  general  authority,  because  ac- 
cepted and  assented  to  as  a  wise  and  desirable  system  by  other 
maritime  nations.  The  same  may  be  said  of  the  Amalphitan 
table,  of  the  ordinances  of  the  Hanseatic  League,  and  of  part 
of  the  marine  ordinances  of  Louis  XIV.  They  all  became  the 
law  of  the  sea,  not  on  account  of  their  origin,  but  by  reason 
of  their  acceptance  as  such.  *  *  *  This  is  not  giving  to 
the  statutes  of  any  nation  extraterritorial  effect.  It  is  not 
treating  them  as  general  maritime  laws,  but  it  is  a  recogni- 
tion of  the  historical  fact  that  by  common  consent  of  mankind 
these  rules  have  been  acquiesced  in  as  of  general  obligation. 
Of  that  fact  we  think  we  may  take  judicial  notice.  Foreign 
municipal  laws  must,  indeed,  be  proved  as  facts ;  but  it  is  not 
so  with  the  law  of  nations."  ^° 

18  Orlotau,  Diplomatie  de  la  Mer,  liv.  I,  c.  IV,  1. 

"By  an  ancient  usage  among  civilized  nations,  beginning  centuries 
ago,  and  gradually  ripening  into  a  rule  of  international  law,  coast 
fishing  vessels^  pursuing  their  vocation  of  catching  and  bringing 
in  fresh  fish,  have  been  recognized  as  exempt,  with  their  cargoes  and 
crews,  from  capture  as  prize  of  war."  The  Paquete  Habana,  175 
U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed.  320. 

19  14  Wall.  170,  20  L.  Ed.  S22. 

Sir  William  Scott's  decisions,  the  source  of  so  much  authority, 
are  frequently  based  on  custom.  In  the  case  of  the  Santa  Cruz  he 
says:  ''There  is  a  law  of  habit,  a  law  of  usage,  a  standing  and 
known  principle  on  the  subject  in  all  civilized  countries.  It  is  the 
common  practice  of  European  States  in  every  war  to  issue  proclama- 
tions and  edicts  on  the  subject  of  prize;  but  till  they  appear  courts 
of  admiralty  have  a  law  and  usage  on  which  they  proceed,  from 
habit  and  ancient  practice,  as  regularly  as  they  afterwards  con- 
form to  the  express  regulations  of  their  prize  acts."  1  C.  Rob.  50. 
And  referring  to  the  right  of  capture  Sir  William  Scott  in  the  cele- 
brated  case  of   The   Maria   says:     "The   right   is  equally   clear  lit 


§  4)  SOURCES   OF    INTERNATIONAL   LAW,  11 

III  the  opinion  rendered  in  the  case  of  West  Rand  Central 
Gold  Mining  Company  v.  Rex,  June  1,  1905,  the  English 
court  held  in  regard  to  international  law  that :  "It  is  quite 
true  that  whatever  has  received  the  common  consent  of  civil- 
ized nations  must  have  received  the  assent  of  our  country, 
and  that  to  which  we  have  assented  along  with  other  nations 
in  general  may  properly  be  called  international  law,  and  as 
such  will  be  acknowledged  and  applied  by  our  national  tribu- 
nals when  legitimate  occasion  arises  for  those  tribunals  to 
decide  questions  to  which  doctrines  of  international  law  may 
be  relevant.  But  any  doctrine  so  invoked  must  be  one  really 
accepted  as  binding  between  nations,  and  the  international  law 
sought  to  be  applied  must,  like  anything  else,  be  proved  by 
satisfactory  evidence,  which  must  show  either  that  the  par- 
ticular proposition  put  forward  has  been  recognized  and  acted 
upon  by  our  own  country,  or  that  it  is  of  such  a  nature,  and 
has  been  so  widely  and  generally  accepted,  that  it  can  hardly 
be  supposed  that  any  civilized  state  would  repudiate  it.  The 
mere  opinions  of  jurists,  however  eminent  or  learned,  that 
it  ought  to  be  so  recognized,  are  not  in  themselves  sufficient. 
They  must  have  received  the  express  sanction  of  international 
agreement,  or  gradually  have  grown  to  be  part  of  international 
law  by  their  frequent  practical  recognition  in  dealings  between 
various  nations."  "° 

(2)  Treaties  and  other  interstate  agreements,  such  as  con- 
ventions, protocols,  etc.,  may  show  upon  any  subject  the  at- 
titude of  the  states  parties  to  the  agreements.  Where  a  consid- 
erable number  of  states  are  parties  to  an  agreement,  as  to  the 
Convention  for  the  Pacific  Settlement  of  International  Dis- 
putes, signed  at  The  Hague,  October  18,  1907,  such  a  con- 
vention becomes  in  effect  international  law  for  the  signatory 
states.  In  a  less  general  way  the  reappearance  of  the  same 
clause  in  a  large  number  of  treaties  between  two  or  a  few  states 
may  indicate  the  existing  law  for  all,  and  does  indicate  the 
existing  law  for  the  states  parties  to  the  treaties.     When  the 


practice,   for  practice  is  uniform  and  universal   upon  the  subject. 
The  many  European  treaties  which  refer  to  this  right  refer  to  it  as 
pre-existing  and  merely  regulate  the  exercise  of  it."    1  C.  Rob.  340. 
2"  (1905)  King's  Bench  Division,  39. 


12  INTERNATIONAL    LAW.  (§  4 

same  clauses  appear  in  treaties  made  between  several  different 
states  at  considerable  intervals  of  time,  it  is  usual  to  draw 
the  same  conclusions  in  regard  to  their  general  application. 

(3)  In  recent  years  the  practice  of  reference  of  questions 
liable  to  cause  disagreement  among  states  to  international 
tribunals  has  become  common.  The  Hague  Convention  of 
1907  states:  "Art.  41.  With  the  object  of  facilitating  an  im- 
mediate recourse  to  arbitration  for  international  differences, 
which  it  has  not  been  possible  to  settle  by  diplomacy,  the  Con- 
tracting Powers  undertake  to  organize  a  permanent  Court  of 
Arbitration  as  established  by  the  First  Peace  Conference,  ac- 
cessible at  all  times,  and  operating,  unless  otherwise  stipulated 
by  the  parties,  in  accordance  with  the  Rules  of  Procedure  in- 
serted in  the  present  Convention."  Many  temporary  and  spe- 
cial courts  have  been  instituted.^ ^  These  tribunals  usually 
decide  the  questions  before  them  on  broad  grounds,  and  their 
decisions  become  precedents  for  subsequent  tribunals.  The 
decisions  of  the  later  tribunals  more  and  more  refer  back  to 
those  of  earlier  years,  and  a  considerable  body  of  rules,  prac- 
tically a  part  of  international  law,  has  thus  developed.^ ^ 

(4)  "The  decisions  of  the  courts  of  every  country,  so  far 
as  they  are  founded  upon  a  law  common  to  every  country, 
will  be  received,  not  as  authority,  but  with  respect.  The  de- 
cisions of  the  courts  of  every  country  show  how  the  law  of 
nations,  in  the  given  case,  is  understood  in  that  country,  and 
will  be  considered  in  adopting  the  rule  which  is  to  prevail  in 
this."  2« 

Sir  William  Scott  in  1799  said  of  the  British  prize  court: 
"This  court  is  properly  and  directly  a  court  of  the  law  of  na- 

21  "The  summer  of  1903  saw  collected  at  Caracas  ten  full  com- 
missions appointed  to  adjudicate  claims  of  as  many  nations  against 
Venzuela,  and  also  the  commissioners  of  an  eleventh  (French)  com- 
mission. Before  these  various  bodies  were  presented  for  considera- 
tion many  most  interesting  questions  of  international  law,  touching 
perhaps  all  of  the  problems  likely  to  prove  sources  of  difficulty  be- 
tween European  and  North  American  nations  on  the  one  hand  and 
the  South  American  Republics  on  the  other."  Preface,  Venezuelan 
Arbitrations,  1903,  Kalston's  Kerwrt. 

22  Moore,  International  ArbiU-ation,  6  vols.,  1898. 

23  Opinion  of  Marshall,  Thirty  Hogsheads  of  Sugar  v.  Boyle,  9' 
Cranch,  191,  3  L.  Ed.  701. 


§  4)  SOURCES   OF   INTERNATIONAL    LAW.  ^  13 

tions  only,  and  not  intended  to  carry  into  effect  the  municipal 
law  of  this  or  any  other  country."  ^*  The  decision  of  a  na- 
tional prize  court,  if  legally  rendered,  is  held  generally  binding. 

"International  law  in  its  widest  and  most  comprehensive 
sense,"  as  was  said  by  the  United  States  Supreme  Court  in 
1894,  "is  part  of  our  law,  and  must  be  ascertained  and  admin- 
.istered  by  the  courts  of  justice,  as  often  as  such  questions  are 
presented  in  litigation  between  man  and  man,  duly  submitted 
,to  their  determination. 

"The  most  certain  guide,  no  doubt,  for  the  decision  of  such 
questions,  is  a  treaty  or  a  statute  of  this  country.  But  where, 
as  the  case  is  here,  there  is  no  written  law  upon  the  subject, 
the  duty  still  rests  upon  the  judicial  tribunals  of  ascertaining 
and  declaring  what  the  law  is,  whenever  it  becomes  necessary 
to  do  so  in  order  to  determine  the  rights  of  parties  to  suits 
regularly  brought  before  them.  In  doing  this,  the  courts  must 
obtain  such  aid  as  they  can  from  judicial  decisions,  from  the 
work  of  jurists  and  commentators,  and  from  the  acts  and 
usages  of  civilized  nations."  -^ 

(5)  Text-writers  upon  international  law  usually  consider  in- 
terstate relations  from  broad  points  of  view.  They  pay  at- 
tention to  historical  development  and  consider  ethical  as  well 
as  jural  bearings  of  such  relations.  They  frequently  attempt 
to  set  forth  the  underlying  principles  which  may  appear  in 
customs,  treaties,  court  decisions,  and  diplomatic  negotiations. 
Wheaton  says :  "Without  wishing  to  exaggerate  the  impor- 
tance of  these  writers,  or  to  substitute,  in  any  case,  their  au- 
thority for  the  principles  of  reason,  it  may  be  affirmed  that 
they  are  generally  impartial  in  their  judgment.  They  are 
witnesses  of  the  sentiments  and  usages  of  civilized  nations, 
and  the  weight  of  their  testimony  increases  every  time  that 
their  authority  is  invoked  by  statesmen,  and  every  year  that 
passes  without  rules  laid  down  in  their  works  being  impugned 
by  the  avowal  of  contrary  principles."  ^® 

In  the  case  of  The  Paquete  Habana  the  United  States  Su- 
preme Court  affirms  that :     "Where  there  is  no  treaty,  and 

2  4  The  Walshingham  Packet,  2  O.  Rob.  77. 

25  Hilton  V.  Guyot,  159  U.  S.  113,  16  Sup.  Ct.  139,  40  L.  Ed.  95. 

26  International  Law,  D,  §  15,  p.  23. 


14  '  INTERNATIONAL    LAW.  (>J  4 

no  controlling  executive  or  legislative  act  or  judicial  decision, 
resort  must  be  had  to  the  customs  and  usages  of  civilized 
nations,  and,  as  evidence  of  these,  to  the  works  of  jurists  and 
commentators  who,  by  years  of  labor,  research,  and  experi- 
ence, have  made  themselves  peculiarly  well  acquainted  with 
the  subjects  of  which  they  treat.  Such  works  are  resorted  to 
by  judicial  tribunals,  not  for  the  speculations  of  their  authors 
concerning  what  the  law  ought  to  be,  but  for  trustworthy 
evidence  of  what  the  law  really  is."  " 

(6)  Diplomatic  papers  do  not  usually  express  anything  be- 
yond the  attitude  of  a  given  state  upon  the  matter  under  con- 
sideration. A  general  agreement  among  states,  as  shown  in 
diplomatic  correspondence,  may  be  a  presumptive  evidence  of 
the  direction  in  which  international  law  may  be  expected  to 
move.  A  position  vigorously  maintained  in  diplomatic  corre- 
spondence, and  generally  conceded,  will  tend  to  become  a 
precedent,  and  to  have  great  weight.  The  correspondence  of 
various  states  with  Russia  in  regard  to  the  list  of  contraband 
in  the  Russo-Japanese  war  of  1901-05,  and  the  protests 
against  the  decisions  of  the  Vladivostok  prize  courts,  did 
much  to  make  clear  the  law  in  regard  to  contraband.-^ 

One  of  the  most  consistent  of  diplomatic  positions  is  that 
of  the  United  States  in  regard  to  the  exemption  of  private 
property  at  sea  from  capture ;  but  even  a  long-continued  and 
aonsistent  diplomatic  policy  is  not  sufficient  to  determine  the 
law.  In  the  case  of  The  Pedro  the  Supreme  Court  of  the 
United  States  said:  "Nor  are  we  justified  in  expanding  ex- 
ecutive action  by  construction  because  of  the  diplomatic  atti- 
tude of  this  government  in  respect  of  the  exemption  of  all 
property,  not  contraband,  of  citizens  and  subjects  of  nations 
at  war  with  each  other — an  exemption  which  has  not  as  yet 
been  adopted  into  the  law  of  nations."  ^^ 

2  7  175  U.  S.  677,  20  Sup.  Ct.  290,  44  Jj.  Ed.  320. 
28  British  Parliamentary  Papers,  Russia,  1905;  Foreign  Relations. 
U.    S.    1904,    1905. 

2  9  17o  U.  S.  354,  20  Sup.  Ct.  138.  44  L.  Ed.  195. 


§  5)  FORCE    OF    INTERNATIONAL   LAW.  15 

FORCE    OF    INTERNATIONAL    LAW. 
5.    International  law  is  a  part  of  the  municipal  la\r  of  states. 

International  law  is  generally  recognized  as  a  part  of  the 
law  of  the  land,  and  is  accordingly  enforced  by  municipal  au- 
thority. 

The  Constitution  of  the  United  States  provides  that  Con- 
gress shall  have  power  "to  define  and  punish  offences  against 
the  Laws  of  Nations."  ^X 

"Congress  has  power  to  make  all  laws  which  shall  be  neces- 
sary and  proper  to  carry  into  execution  the  powers  vested  by 
the  Constitution  in  the  government  of  the  United  States  (arti- 
cle 1,  section  8,  clause  18) ;  and  the  government  of  the  United 
States  has  been  vested  exclusively  with  the  power  of  repre- 
senting the  nation  in  all  its  intercourse  with  foreign  countries. 
It  alone  can  'regulate  commerce  with  foreign  Nations'  (arti- 
cle 1,  section  8,  clause  3) ;  make  treaties  and  appoint  am- 
bassadors and  other  public  ministers  and  consuls  (article  2, 
section  3,  clause  2).  A  state  is  expressly  prohibited  from  en- 
tering into  any  'treaty,  alliance,  or  confederation'  (article  1^ 
section  10,  clause  1).  Thus  all  official  intercourse  between  a 
state  and  foreign  nations  is  prevented,  and  exclusive  authority 
for  that  purpose  is  given  to  the  United  States.  The  national 
government  is  in  this  way  responsible  to  foreign  nations  for 
all  violations  by  the  United  States  of  their  international  obli- 
gations, and  because  of  this  Congress  is  expressly  authorized 
'to  define  and  punish  *  *  *  offences  against  the  law  of 
nations'  (article  1,  section  8,  clause  10). 

"The  law  of  nations  requires  every  national  government  to 
use  'due  diligence'  to  prevent  a  wrong  being  done  within  its 
own  dominion  to  any  other  nation  with  which  it  is  at  peace,  or 
to  the  people  thereof.    *    *    * 

"It  remains  only  to  consider  those  questions  which  present 
the  point  whether,  in  enacting  a  statute  to  define  and  punish 
an  offense  against  the  law  of  nations,  it  is  necessary,  in  order 
'to  define'  the  offense,  that  it  be  declared  in  the  statute  itself 

80  Article  1.  §  8,  cl.  10. 


1  ('}  INTERNATIONAL    LAW.  (§  5 

to  be  'an  offense  against  the  law  of  nations.'  This  statute 
defines  the  offense,  and  if  the  thing  made  punishable  is  one 
which  the  United  States  are  required  by  their  international 
obligations  to  use  due  diligence  to  prevent,  it  is  an  offense 
against  the  law  of  nations.  Such  being  the  case,  there  is  no 
more  need  of  declaring  in  the  statute  that  it  is  such  an  of- 
fense than  there  would  be  in  any  other  criminal  statute  to  de- 
clare that  it  was  enacted  to  carry  into  execution  any  other 
particular  power  vested  in  the  government  of  the  United 
States.  Whether  the  offense  as  defined  is  an  offense  against 
the  law  of  nations  depends  on  the  thing  done,  not  on  any 
declaration  to  that  effect  by  Congress."  ^^ 

The  opinion  of  the  Supreme  Court  of  the  United  States  is 
"that  the  laws  of  the  United  States  ought  not,  if  it  be  avoid- 
able, so  to  be  construed  as  to  infract  the  common  principles 
and  usages  of  nations  or  the  general  doctrines  of  national 
law."  V  An  act  of  Congress  ought  never  to  be  construed  to 
violate  the  law  of  nations,  if  any  other  possible  construction 
remains,  and,  consequently,  can  never  be  construed  to  violate 
neutral  rights,  or  to  affect  neutral  commerce  further  than  is 
warranted  by  the  law  of  nations  as  understood  in  this  coun- 
try." ^2  The  intercourse  of  the  United  States  "with  foreign 
nations  and  its  policy  in  regard  to  them,  are  placed  by  the  Con- 
stitution of  the  United  States  in  the  hands  of  the  government, 
and  its  decisions  upon  these  subjects  are  obligatory  on  every 
citizen  of  the  Union."  ^*  "Foreign  municipal  laws  must  in- 
deed be  proved  as  facts ;  but  it  is  not  so  with  the  law  of  na- 
tions." The  law  of  nations  "in  its  full  extent  is  part  of  the 
law  of  this  state,  and  is  to  be  collected  from  the  practice  of 
different  nations,  and  the  authority  of  writers."  ^®     In  1899 


31  United  States  v.  Arjona,  120  U.  S.  479,  7  Sup.  Ct.  028,  30  L.  Ed. 
728. 

32  Talbot  V.  Seeman,  1  Cranch,  1.  2  L.  Ed.  15;  The  Amelia,  4  Dall. 
34,  1  L.  Ed.  730 ;  The  Charming  Betsy,  2  Crauch,  64,  2  L.  Ed.  20S. 

33  The  Charming  Betsey,  2  Cranch,  64,  2  L.  Ed.  208;  Ex  parte  Blu- 
mer,  27  Tex.  740. 

3  4  Kenuett  v.  Chambers,  14  How.  38,  14  L.  Ed.  31G. 

3s  Respiiblica  v.  De  Longchamps,  1  Dall.  Ill,  1  L.  Ed.  59;  The 
Scotia.  14  Wall.  170,  20  L.  Ed.  822.  Vide,  also,  Thii-ty  Hogshead.s 
of  Sugar  V.  Boyle,  9  Cranch,  191,  3  L.  Ed.  701 ;  United  States  v.  The 


§  5)  FORCE    OF   INTERNATIONAL.   LAW.  17 

the  United  States  Supreme  Court  said  that  it  would  be  bound 
"to  take  judicial  notice  of,  and  give  effect  to,"  a  rule  of  inter- 
national law,  "in  absence  of  any  treaty  or  other  public  act  of 
their  government  in  relation  to  the  matter."  ^^ 

Active,  24  Fed.  Cas.  759 ;  The  Nereide,  9  Cranch,  388,  3  L.  Ed.  769 ; 
The  New  York,  175  U.  S.  187,  20  Sup.  Ct.  67,  44  L.  Ed.  126. 

3  6  The  Paquete  Habana,  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed. 
320. 

WiLS.lNT.L.— 2 


Part  l 
PERSONS  IN  INTERNATIONAL  LAW 

WiLS.lNT.L.  (19)* 


g  6)  PERSONS  IN  INTERNATIONAL  LAW.  21 

CHAPTER  I. 
PERSONS  IN  INTERNATIONAL  LAW. 

6.  Status. 

7.  States  in  International  Law. 

8.  Definition  of  State. 

9.  Acquisition  of  International  Status. 

10.  Recognition  of  International  Status. 

11.  Persons  Having  Limited  Status. 

12.  States  Outside  tlie  Family  of  Nations. 

13.  Neutralized  States. 

14.  Members  of  Political  Unions. 

15.  Protected   States. 

16.  Belligerents. 

17.  Recognition  of  Belligerency. 

18.  Insurgents. 

19.  Loss  or  Modification  of  Status. 

STATUS. 

6.   The    status   of  persons   in  international  law   may  vary   as 

in    otlier   branclies    of   lax^    according   to    their    rights, 

liabilities,  and  disabilities. 
A  state  is  regarded  as  having  f nil  legal  status. 
Various  other  unities  are  accorded  a  limited  status,  such 

as  belligerents  in  time  of  war,  political  unities  under 

protectorates,  etc. 

Status  may  be  determined  by  policy  of  one  or  more  states 
or  by  public  law.  Turkey,  after  a  de  facto  existence  of  many 
years,  was  formally  admitted  to  international  statehood  by 
the  Treaty  of  Paris,  1856.  Insurrectionists  recognized  as 
bellig-erents  obtain  definite  legal  status,  giving  them,  so  far 
as  hostilities  are  concerned,  the  same  privileges  as  the  state 
against  which  they  are  waging  war.  Sweden-Norway,  a  per- 
sonal union  from  1815,  became  two  kingdoms  in  1905.  While 
the  physical,  moral,  ethnic,  or  other  conditions  may  not 
change,  and  while  the  reason  may  not  always  be  evident  for 
the  granting  of  international  status  where  it  had  not  previously 
existed,  yet  when  once  granted  the  rights  of  the  status  must 
be  conceded. 


22  PERSONS  IN  INTERNATIONAL   LAW.  (Ch.  1 


STATES. 

7.  Only  states  in  the  strict  sense  of  the  word  are  recognized 

as  full  legal  persons  in  international  law. 

A  recognized  belligerent  has  a  qualified  status,  limited  to 
the  conduct  of  warfare,  or  a  protectorate  may  have  certain 
rights  which  have  not  passed  to  the  protector;  but  full  inter- 
national status  appertains  only  to  states  in  the  strict  sense  of 
the  word,  as  distinguished  from  the  use  of  the  term  to  desig- 
nate political  divisions;  e.  g.,  Maine,  New  Hampshire,  Ver- 
mont, etc.,  in  the  United  States.  The  only  state  on  the  Ameri- 
can continent  north  of  Mexico  which  international  law  recog- 
nizes is  the  United  States  of  America. 

DEFINITION    OF    STATE. 

8.  A  state  is  a  sovereign  political  unity. 

Concretely  vieived,  a  state  is  a  body  politic  possessing  sov- 
ereignty. 

The  word  "state"  has  had  many  definitions.  Some  of  these 
predicate  of  it  physical,  moral,  ethnic,  numerical,  social,  or 
other  attributes.  State  is,  however,  a  political  concept,  and 
the  characteristics  sometimes  attributed  to  it  may  be  condi- 
tions of  its  existence,  but  are  not  in  themselves  essential  to  a 
state.  The  definition  given  by  Grotius  is  rather  of  a  unity  to 
be  hoped  for  than  of  a  state  as  existing  in  his  day  or  since: 
"A  state  is  a  perfect  body  of  freemen  associated  for  the  en- 
joyment of  rights  and  of  common  advantages."  ^ 

From  the  point  of  view  of  international  law  recognized 
political  sovereignty  is  the  test  of  statehood.  Any  body  politic 
possessing  sovereignty  is  entitled  to  be  called  a  state.  The 
definition,  "A  state  is  a  sovereign  political  unity,"  implies  that 
the  unity  is  not  necessarily  of  any  particular  form,  but  must 
be  political  and  sovereign ;  i.  e.,  must  be  "for  public  ends  as 
understood  in  the  family  of  nations,"  in  distinction  from  pri- 

1  Est  autem  civitas  coetus  perfectus  liberorum  hominum,  juris 
fruendi  et  communis  utilitatis  causa  sociatus.  De  Jure  Belli  ac 
Pacis,  Lib.  I,  cap.  I,  XIV,  1. 


§  8)  DEFINITION    OF   STATE.  23 

vate  ends,  as  in  a  commercial  company,  and  the  unity  must  be 
self-sufficient  and  self-determining.  Territory  and  population 
are  conditions  necessary  for  the  existence  of  a  state  as  for  any 
other  social  institution;   e.  g.,  the  church  or  family. 

The  form  of  the  internal  organization  of  a  state,  the  rela- 
tions of  its  parts,  and  the  like,  have  often  received  much  at- 
tention in  books  on  international  law.  Such  matters,  however, 
belong  to  the  field  of  constitutional  and  other  branches  of 
public  law,  rather  than  to  international  law,  which  is  more 
concerned  with  the  external  relationship  than  with  the  form 
of  internal  organization.  There  is  for  international  law  no 
distinction  between  monarchy  and  republic,  confederation  and 
federation,  simple  and  composite  states.  It  may  be  necessary 
for  diplomats  to  know  how  far  a  given  organ  of  state  has 
authority  to  act  for  the  state — e.  g.,  an  Emperor  or  President ; 
But  this  relates  to  constitutional  rather  than  international  law. 

As  Phillimore  says :  "It  is  a  sound  general  principle,  and 
one  to  be  laid  down  at  the  threshold  of  the  science  of  which 
we  are  treating,  that  international  law  has  no  concern  with 
the  form,  character,  or  power  of  the  constitution  or  govern- 
ment of  a  state,  with  the  religion  of  its  inhabitants,  the  extent 
of  its  domain,  or  the  importance  of  its  position  and  influence 
in  the  commonwealth  of  nations."  ^ 

A  state  de  facto  may  possess  full  right  to  regulate  its  in- 
ternal affairs  without  interference  from  any  foreign  state,  in- 
ternal sovereignty ;  but  this  does  not  make  the  state  a  person 
in  the  family  of  nations.  To  be  a  member  of  the  family  of 
nations  a  state  must  be  recognized  as  such  by  those  already 
within  the  international  circle.  From  the  time  of  such  recog- 
nition, the  state  is  regarded  as  in  possession  of  external  sov- 
ereignty. 

There  has  been  much  discussion  as  to  the  Holy  See.  Some 
claim  that  it  is  a  full  state;  others  deny  it  such  position. 
Certainly  the  Pope  has  been,  and  is,  even  by  the  Italian  Law 
of  Guaranty  of  May  13,  1871,  regarded  as  having  the  attri- 
butes commonly  possessed  by  sovereigns.  He  possesses  in- 
violability. He  is  exempt  from  foreign  jurisdiction.  He  re- 
ceives the  honors  of  a  sovereign.     He  has  the  right  to  send 

2  1  Phillimore,  International  Law,  LXIII,  p.  81. 


24  PERSONS  IN   INTERNATIONAL   LAW.  (Ch.  1 

and  to  receive  diplomatic  a.Q"cnt?.  The  area  over  which  he 
exercises  temporal  jurisdiction  is  very  limited,  and  the  juris- 
diction is  qualified.^ 


ACQUISITION    OF    INTERNATIONAL,    STATUS. 

9.  A  de  facto  state,  possessing  all  the  necessary  character- 
istics required  by  constitutional  law  for  full  state- 
hood, may  exist,  and  yet  such  a  state  may  not  have 
full  status  in  international  law.  This  status  is  ac- 
quired at  the  present  time  on  admission  to  the  number 
of  states  noiv  regarded  as  constituting  the  family  of 
nations. 

The  entrance  of  the  state  into  international  statehood,  how- 
ever, depends  entirely  upon  the  recognition  by  those  states 
already  within  this  circle.  Whatever  advantages  membership 
in  this  circle  may  confer,  and  whatever  duties  it  may  impose, 
do  not  fall  upon  the  new  state  until  its  existence  is  generally 
recognized  by  the  states  already  within  the  international  circle. 
These  advantages  and  duties,  as  between  the  recognizing  and 
recognized  state,  immediately  follow  recognition,  but  do  not 
necessarily  extend  to  other  states  than  those  actually  party  to 
the  recognition.  The  basis  of  this  family  of  nations  or  inter- 
national circle,  which  admits  other  states  to  membership,  is 
historical,  resting  on  the  polity  of  the  older  European  states. 
These  states,  through  the  relations  into  which  they  were 
brought  by  reason  of  proximity  and  intercourse,  developed 
among  themselves  a  system  of  action  in  their  mutual  deal- 
ings ;  and  international  law  in  its  beginning  proposed  to  set 
forth  what  this  law  was  and  should  be.  This  family  of  states 
could  not  permit  new  accessions  to  its  membership,  unless 
these  new  states  were  properly  constituted  to  assume  the  mu- 
tual relationships,  and  as  to  the  proper  qualifications  for  ad- 
mission in  each  case  the  states  already  within  the  family  claim 
and  exercise  the  right  to  judge.* 

Other  states  were  from  time  to  time  and  in  various  ways 
recognized  as  members  of  the  family  of  nations.    The  family 

3  For  bibliography  in  reg;ird  to  the  Holy  See,  Bonfils,  Droit  In- 
ternational Public,  §§  370,  £f. 

4  Wilson  &  Tucker,  Int.  Law  (5th  Ed.)  §  22,  p.  47. 


§  9)  ACQUISITION   OP   INTERNATIONAL   STATUS.  25 

was  at  first  European,  and  its  law  European.  Gradually  the 
group  admitted  new  members ;  these  new  members  acknowl- 
edging the  existing  law  as  binding.  The  United  States  of 
America  was  the  earliest  addition  outside  of  Europe ;  but  the 
United  States  adopted  for  the  most  part  the  international  law 
of  the  European  family.  As  Hamilton  said :  "Ever  since  we 
have  been  an  independent  nation,  we  have  appealed  to  and 
acted  upon  the  modern  law  of  nations  as  understood  in 
Europe.  Various  resolutions  of  Congress  during  our  Revolu- 
tion, the  correspondence  of  executive  officers,  the  decisions  of 
our  courts  of  admiralty,  all  recognized  this  standard."  ^  Oth- 
er American  states  similarly  became  members  of  the  family  of 
nations. 

In  the  early  days,  also,  international  law  was  regarded  as 
limited  to  Christian  states,  though,  as  declared  by  the  five 
powers  in  1818,  it  was  "their  invariable  resolution  never  to 
depart,  either  among  themselves  or  in  their  relations  with 
other  states,  from  the  strictest  observation  of  the  principles 
of  the  rights  of  nations."  ®  In  1856,  however,  the  five  great 
powers  of  that  day  admitted  the  Turkish  Empire  to  "the  par- 
ticipation in  the  advantages  of  European  public  law  and  con- 
cert." The  entrance  of  Japan  into  the  family  of  nations  in 
1899  added  another  non-European  state  to  the  international 
circle.''' 


5  Letters  to  Camillus,  No.  20,  5  Hamilton's  Works  (Lodge's  Ed.)  89. 

6  1  Hertslet,  574. 

7  "The  treaty  of  commerce  and  navigation  between  the  United 
States  and  Japan  on  November  22,  1S94,  toolc  effect  in  accordance 
with  the  terms  of  its  XlXth  article  on  the  17th  of  July  last,  simul- 
taneously with  the  enforcement  of  like  treaties  with  the  other 
powers,  except  France,  whose  convention  did  not  go  into  operation 
until  August  4th;  the  United  States  being,  however,  gi-anted  up  to 
that  date  all  the  privileges  and  rights  accorded  to  French  citizens 
under  the  old  French  treaty.  By  this  notable  conventional  reform 
Japan's  position  as  a  fully  independent  sovereign  power  is  assured ; 
control  being  gained  of  taxation,  customs  revenues,  judicial  admin- 
istration, coasting  trade,  and  all  other  domestic  functions  of  govern- 
ment, and  foreign  exti*aterritorial  rights  being  renounced."  Message 
of  President  McKinley,  Dec.  5,  1899. 

In  accordance  with  the  Emporer's  orders,  the  Japanese  ministers 
of  state  issued  instructions  in  regard  to  the  operation  of  treaties 


26  PEKSONS  IN  INTERNATIONAL   LAW.  (Cll.  1 


RECOGNITIOX    OF    INTERNATIONAL    STATUS, 

10.  Recognition  is  the  act  \irhicli  gives  to  a  de  facto  state 
international  status. 
Recognition  is  the  act  of  the  department  of  government 
intrusted  with  authority  in  foreign  affairs,  and  makes 
the  parties  equal  as  regards  international  law.  Rec- 
ognition is  usually  regarded  as  a  deliberate  act,  which 
is   irrevocable. 

Recognition  of  a  new  state  is  uniformly  regarded  as  an 
act  reserved  to  the  department  of  government  charged  with 
the  conduct  of  foreign  affairs.  As  is  said  by  the  Supreme 
Court  of  the  United  States:  "Who  is  the  sovereign,  de  jure 
or  de  facto,  of  a  territory,  is  not  a  judicial,  but  a  political, 
question,  the  determination  of  which  by  the  legislative  and 


admitting  Japan   to   the   family   of   nations.     The  following  is  an 

"Cabinet  Notification  No.  1. 

"The  work  of  revising  the  treaties  has  caused  deep  solicitude  to 
His  August  Majesty  since  the  centralization  of  the  government,  and 
has  long  been  an  object  of  earnest  desire  to  the  people.  More  than 
twenty  years  have  elapsed  since  the  question  was  opened  by  the  dis- 
patch of  a  special  embassy  to  the  West  in  1871.  Throughout  the 
whole  of  that  interval,  various  negotiations  were  conducted  with 
foreign  countries  and  numerous  plans  discussed,  until  finally,  in 
1884,  Great  Britain  took  the  lead  in  concluding  a  revised  treaty, 
and  the  other  powers  all  followed  in  succession,  so  that  now  the 
operation  of  the  new  treaties  is  about  to  take  place  on  the  17th  of 
July  and  the  4th  of  August. 

"The  revision  of  the  treaties,  in  the  sense  of  placing  on  a  footing 
of  equality  the  intercourse  of  this  country  with  foreign  states,  was 
the  basis  of  the  great  liberal  policy  adopted  at  the  time  of  the  restor- 
ation, and  that  such  a  course  conduces  to  enhance  the  prestige  of 
the  Empire  and  to  promote  the  prosperity  of  the  people  is  a  propo- 
sition not  requiring  demonstration.  But,  if  there  should  be  anything 
defective  in  the  methods  adopted  for  giving  effect  to  the  treaties, 
not  merely  will  the  object  of  revision  be  sacrificed,  but  also  the 
country's  relations  with  friendly  powers  will  be  impaired,  and  its 
prestige  may  be  lowered.  It  is,  of  course,  beyond  question  that 
any  rights  and  privileges  accruing  to  us  as  a  result  of  treaty  revision 
should  be  duly  asserted.  But  there  devolves  upon  the  government 
of  this  Empire  the  responsibility,  and  upon  the  people  of  this  realm 
the  duty,  of  protecting  the  rights  and  privileges  of  foreigners,  and 


§  10)  RECOGNITION    OF   INTERNATIONAL   STATUS.  27 

executive  departments  of  any  government  conclusively  binds 
the  judges,  as  well  as  all  other  officers,  citizens,  and  subjects 
of  that  government.  This  principle  has  always  been  upheld 
by  this  court,  and  has  been  affirmed  under  a  great  variety  of 
circumstances.*  *  *  *  It  is  equally  well  settled  in  Eng- 
land." « 

Recognition,  of  course,  would  not  be  withheld  from  a  state 
formed  by  the  voluntary  union  of  two  or  more  previously 
recognized  states,  as  this  recognition  could  not  be  regarded  by 
any  other  state  as  premature  or  otherwise  improper.  Such 
recognition  took  place  when  the  German  Empire  was  estab- 
lished in  1871. 

Likewise  there  is  no  offense  in  the  recognition  of  states 
which  come   into  being  through   the  peaceful  dissolution   of 

of  sparing  no  effort  that  they  may  one  and  all  be  enabled  to  reside 
in  the  country  confidently  and  contentedly.  It  behooves  all  officials 
to  clearly  apprehend  the  august  intentions,  and  to  pay  profound  at- 
tention to  these  points. 

"Marquis   Yamagata,    Minister    President   of    State. 
"July  1,  1S99."  Foreign  Relations  U.  S.,  1899,  p.  469. 

8  Can  there  be  any  doubt  that  when  the  executive  branch  of  the 
government,  which  is  charged  with  our  foreign  relations,  shall  in 
its  correspondence  with  a  foreign  nation  assume  a  fact  in  regard 
to  the  sovereignty  of  any  island  or  country,  it  is  conclusive  on  the 
judicial  department?  And  in  this  view  it  is  not  material  to  inquire, 
nor  is  it  the  province  of  the  court  to  determine,  whether  the  execu- 
tive be  right  or  wrong.  It  is  enough  to  know  that  in  the  exercise 
of  his  constitutional  functions  he  has  decided  the  question.  Hav- 
ing done  this  under  the  responsibilities  which  belong  to  him,  it  is 
obligatory  on  the  people  and  government  of  the  Union.  Williams 
v.  Suffolk  Ins.  Co.,  13  Pet.  415,  10  L.  Ed.  226 ;  Jones  v.  United  States, 
137  U.  S.  202,  11  Sup.  Ct.  80,  34  L.  Ed.  691;  Gelston  v.  Hoyt,  3 
Wheat.  246,  4  L.  Ed.  381;  United  States  v.  Palmer,  3  Wheat.  610, 
4  L.  Ed.  471 ;  The  Diviua  Pastora,  4  Wheat.  52,  4  L.  Ed.  512;  Foster 
v.  Neilson,  2  Pet.  253,  7  L.  Ed.  415 ;  Keene  v.  M'Donough,  8  Pet.  308, 
8  L.  Ed.  955;  Garcia  v.  Lee,  12  Pet.  511,  9  L.  Ed.  1176;  United 
States  V.  Yorba,  1  Wall.  412,  17  L.  Ed.  635;  United  States  v.  Lynde, 
11  Wall.  632,  20  L.  Ed.  230. 

9  The  Pelican,  Edw.  Adm,  appx.  D;  Taylor  v.  Barchlay,  2  Sim. 
213;  Emperor  of  Austria  v.  Day,  3  De  G.,  F.  &  J.  217,  221,  233; 
Republic  of  Peru  v.  Peruvian  Guano  Co.,  36  Ch.  D.  489,  497;  Re- 
public of  Peru  V.  Dreyfus,  38  Ch.  D.  348,  356,  359. 


28  PERSONS   IN  INTERNATIONAL   LAW.  (Cb.  1 

previously  existing-  bonds  of  union,  as  in  the  case  of  Sweden 
and  Norway  in  1905.^ *> 

There  is  greater  possibility  of  misunderstanding  in  case  rec- 
ognition is  given  to  a  state  that  comes  into  being  through  dis- 
ruption of  previously  existing  bonds  by  force  of  arms.  Such 
recognition  is  a  question  of  policy,  and,  if  premature,  may  be 

!•  Foreign  Relations  U.  S.,  1905,  pp.  853-874. 

Some  of  the  questions  arising  in  consequence  of  dissolution  of  the 
union  of  Sweden  and  Norway  are  considered  in  the  following  memo- 
randum of  the  Secretary  of  State  of  the  United  States: 

"The  Secretary  of  State  to  the  Japanese  Minister. 
"Department  of  State,  Washington,  November  10,  1905. 

"The  Secretary  of  State  has  considered  the  questions  In  regard 
to  the  treaties  of  Sweden  and  Norway  and  the  diplomatic  and  con- 
sular relations  of  those  countries  with  other  powers  propounded 
in  the  memorandum  left  with  him  by  the  Japanese  minister  on  the 
9th   instant. 

"The  first  and  second  points  therein  brought  up  remain  for  future 
adjustment.  The  views  of  this  government  as  to  their  treatment 
may  be  thus  stated.     The  queries  are: 

"  '(1)  Are  the  treaties  hitherto  concluded  and  existing  between 
the  United  Kingdom  of  Sweden  and  Norway  and  other  powers  to 
be  considered  to  have  ceased  to  be  valid  at  this  juncture  so  far  as 
regards  Norway,  and  has  Norway  temporarily  to  lose  its  treaty  re- 
lations with  such  other  powers? 

"  '(2)  Are  such  treaties  as  referred  to  above  to  be  considered  valid 
so  far  as  regards  Sweden?' 

"The  treaty  of  1816,  which  was  terminated  in  1826,  and  that  of 
1827,  still  extant,  were  concluded  by  the  United  States  with  the  sov- 
ereign of  Sweden  and  Norway,  acting  on  behalf  of  each  country. 
Sweden  and  Norway  are  not  therein  described  as  a  united  kingdom ; 
but  the  obligations  contracted  and  privileges  granted  by  their  com- 
mon king  are  separately  specified,  in  each  instance  as  to  the  ter- 
ritories, shipping,  and  commerce  of  each  country.  This  government 
would  regard  the  treaty  provisions  in  regard  to  Norway  and  to 
Sweden  as  severally  binding  upon  each  country  and  unaffected  by 
the  dynastic  change  in  Norway.  In  point  of  fact  the  government 
of  Norway  and  the  government  of  Sweden  have  hitherto  acted  in- 
dependently in  execution  of  their  treaty  engagements,  each  within 
its  sovereign  jurisdiction.  In  the  matter  of  extradition  the  United 
States  has  concluded  separate  treaties  with  the  governments  of  Nor- 
way and  of  Sweden. 

"  '(3)  Are  the  diplomatic  agents  and  consular  ofBcers  hitherto  ac- 
credited by  the  United  Kingdom  of  Sweden  and  Norway  to  the  other 


§  10)  RECOGNITION    OF   INTERNATIONAL    STATUS.  29 

regarded  by  the  previously  existing  government  as  a  cause 
for  war.  The  recognition  of  the  United  States  of  America  by 
France  in  1778  was  premature,  and  was  practically  an  alliance 
against  Great  Britain. ^^ 

powers  to  be  hereafter  recognized  as  the  diplomatic  agents  and  con- 
sular officers  of  Sweden?' 

"This  government  has  been  notified  by  the  government  of  Norway 
that  the  functions  of  the  diplomatic  representatives  of  Sweden  and 
Norway  have  ceased,  ipso  facto,  so  far  as  Norway  is  concerned,  and 
that  representatives  of  Norway  will  be  appointed.  It  is  nnderstood 
that  the  Swedish  government  regards  its  diplomatic  agents  as  the 
representatives  of  the  sovereign,  and  that  with  the  termination  of 
the  king's  sovereignty  over  Norway  his  ministers  cease  to  represent 
Norway,  but  that  their  representation  of  Sweden  is  unaffected  there- 
by, and  that  no  new  credentials  are  needed.  It  is  presumed  that 
each  country  holds  the  same  position  with  regard  to  its  consular 
representatives. 

"  '(4)  Are  the  diplomatic  agents  and  consular  officers  hitherto  ac- 
credited by  foreign  powers  to  the  United  Kingdom  of  Sweden  and 
Norway  to  be  recognized  hereafter  as  the  diplomatic  agents  and 
consular  oflScers  of  Sweden  alone?  If  so,  is  it  not  required  at  this 
juncture  to  renew  the  credentials  presented  to  the  king  of  Sweden 
and  Norway  by  the  diplomatic  agents  of  foreign  iwwers,  or  to  take 
any  such  course  in  order  to  continue  the  terms  of  office  of  these 
diplomatic  agents  and  consular  oflicers  as  are  accredited  to  Sweden 
alone?' 

"The  United  States  will,  upon  provision  therefor  by  the  Congress, 
accredit  a  diplomatic  representative  to  Norway. 

"As  under  our  constitutional  system  the  President  is  not  a  sover- 
eign, but  the  mandatory  of  the  sovereign  powers  of  the  states  of 
the  Union,  the  relations  of  the  United  States  with  foreign  countries 
are  as  between  government  and  government,  rather  than  as  between 
sovereign  and  sovereign.  Consequently  the  United  States  will  in 
due  time  accredit  its  diplomatic  representative  to  Sweden  alone ; 
but  in  the  meanwhile  it  is  disposed  to  regard  its  present  minister 
as  dually  accredited  to  the  two  kingdoms,  and  therefore  competent 
to  transact  affairs  with  the  government  of  Norway.  As  the  con- 
suls of  the  United  States  in  Sweden  and  Norway  act  under  exequa- 
turs defining  their  territorial  jurisdiction,  it  is  not  thought  necessary 
to  seek  a  new  exequatur  for  a  consul  who  already  has  a  Norwegian 
exequatur.  A  consul  who  has  a  Swedish  exequatur  is,  of  course,  un- 
affected by  the  change." 

11  Treaty  of  February  6,  1778,  between  France  and  the  United 
States: 

"Article  I.  If  war  should  break  out  between  France  and  Great 
Britain   during   the   continuance   of   the  present   war   between   the 


30  PERSONS   IN   INTERNATIONAL   LAW.  (Ch.  1 

While  recognition  must  proceed  from  the  poHtical  depart- 
ment of  the  government  of  the  recognizing  state,  there  is  no 
fixed  method  in  accord  with  which  recognition  should  be  giv- 
en. Recognition  may  be  a  formal  state  act,  as  by  treaty,  proc- 
lamation, declaration,  or  implied,  from  the  reception  or  send- 
ing of  a  diplomatic  agent,  the  grant  of  an  exequatur,  the  offi- 
cial salute  of  the  flag,^-  or  other  act  of  similar  significance. 

The  recognition  may  be  individual  by  one  state,  as  in  the 
case  of  the  recognition  of  the  United  States  by  the  Nether- 
lands in  1782,  or  collective,  by  a  group  of  states,  as  in  the  case 
of  the  Congo  Free  State  at  the  Conference  of  Berlin  in  1884. 

Recognition  of  a  state  is  irrevocable  and  absolute,  unless 
granted  under  specific  reservations  or  conditions. 

In  1903  the  United  States  recognized  Panama  as  a  state.  On 
occasion  of  the  presentation  of  his  letter  of  credence  on  No- 
vember 13th,  the  Minister  of  Panama  said: 

"Mr.  President:  In  according  to  the  minister  plenipoten- 
tiary of  the  Republic  of  Panama  the  honor  of  presenting  to 
you  his  letters  of  credence,  you  admit  into  the  family  of  na- 
tions the  weakest  and  the  last-born  of  the  republics  of  the 
New  World." 

The  President  in  his  reply  said: 

"Mr.  Minister:  I  am  much  gratified  to  receive  the  letters 
whereby  you  are  accredited  to  the  government  of  the  United 
States  in  the  capacity  of  envoy  extraordinary  and  minister 
plenipotentiary  of  the  Republic  of  Panama. 

"In  accordance  with  its  long-established  rule,  this  govern- 
ment has  taken  cognizance  of  the  act  of  the  ancient  territory 
of  Panama  in  reasserting  the  right  of  self-control,  and,  seeing 
in  the  recent  events  on  the  Isthmus  an  unopposed  expression 
of  the  will  of  the  people  of  Panama  and  the  confirmation  of 
their  declared  independence  by  the  institution  of  a  de  facto 
government,  republican  in  form  and  spirit,  and  alike  able  and 
resolved  to  discharge  the  obligations  pertaining  to  sovereignty, 

Uuited  States  and  England,  His  Majesty  and  the  said  United  States 
shall  make  it  a  common  cause  and  aid  each  other  mutually  with 
their  good  offices,  their  counsels  and  their  forces,  according  to  the 
exigence  of  conjunctures,  as  becomes  good  and  faithful  allies." 
12  Declaration  of  the  United  States,  April  22,  18S4. 


§  11)  PERSONS   HAVING    LIMITED   STATUS.  31 

we  have  entered  into  relations  with  the  new  republic.  It  is 
fitting  that  we  should  do  so  now,  as  we  did  nearly  a  century 
ago  when  the  Latin  peoples  of  America  proclaimed  the  right 
of  popular  government;  and  it  is  equally  fitting  that  the 
United  States  should,  now  as  then,  be  the  first  to  stretch  out 
the  hand  of  fellowship  and  to  observe  toward  the  new-born 
state  the  rules  of  equal  intercourse  that  regulate  the  relations 
of  sovereignties  toward  one  another."  ^' 

It  is  usually  maintained  that  recognition  of  statehood  by  the 
family  of  nations,  though  subsequent  to  the  time  when  the 
recognized  state  has  declared  its  independence,  does  not  deter- 
mine the  date  of  the  beginning  of  the  state  recognized.  As 
was  said  in  the  Supreme  Court  of  the  United  States  in  1796 : 

"From  the  4th  of  July,  1776,  the  American  states  were  de 
facto,  as  well  as  de  jure,  in  the  possession  and  actual  exercise 
of  all  the  rights  of  independent  governments.  *  *  *  j  have 
ever  considered  it  as  the  established  doctrine  of  the  United 
States  that  their  independence  originated  from  and  com- 
menced with  the  declaration  of  Congress,  on  the  4th  of  July, 
1776,  and  that  no  other  period  can  be  fixed  on  for  its  com- 
mencement, and  that  all  laws  made  by  the  Legislatures  of  the 
several  states,  after  the  Declaration  of  Independence,  were  the 
laws  of  sovereign  and  independent  governments."  ^* 

PERSONS    HAVING   LIMITED    STATUS. 

lit  Political  unities,  not  recognized  by  the  family  of  nations 
as  having  full  rights  to  determine  their  external  re- 
lations, are  regarded  as  having  limited  statns  as  in- 
ternational persons. 
This  limited  status  may  be  because  recognition  has  never 
been  given,  has  been  qualified  or  suspended,  or  has 
been  made  the  subject  of  special  agreement.  Persons 
having  limited  status  include  states  not  admitted  to 
the  family  of  nations,  neutralized  states,  members  of 
political  unions,  protected  states,  and  some  others,  en- 
tities under  special  circumstances,  as  in  the  case  of 
recognized  belligerents. 

18  Foreign  Relations  U.  S.,  1903,  p.  245. 

1*  Ware,  Adm'r  of  Jones,  v.  Hylton  et  al.,  3  Dall.  199,  224,  1  L. 
Ed.  568. 


82  PERSONS   IN  INTERNATIONAL   LAW.  (Ch.  1 


STATES    OUTSIDE   THE    FAMILY    OF    NATIONS. 

12.  States    not    yet    admitted    to    the    family    of    nations    may 

have  all  the  attributes  of  states,  in  the  sense  of  public 
lawr  and  from  the  point  of  vieTP  of  political  science, 
and  yet  lack  international  statehood. 

Asia  has  furnished  numerous  instances  of  poHtical  unities 
which  have  not  been  recognized  by  the  family  of  nations  as 
states  in  the  sense  of  international  law.  Such  states  have  not 
been  invited  as  of  right  to  international  conferences,  though 
often  some  have  been  invited  from  courtesy.  They  have  not 
been  allowed  to  exercise  certain  rights  over  foreigners  within 
their  own  jurisdiction.  Such  restrictions  frequently  appear  in 
the  grant  of  special  judicial  authority  to  consuls  of  the  states 
of  the  family  of  nations  accredited  to  Asiatic  states.  Article 
IV  of  the  treaty  of  November  17,  1880,  between  the  United 
States  and  China  provides  that:  "When  controversies  arise 
in  the  Chinese  Empire  between  citizens  of  the  United  States 
and  subjects  of  His  Imperial  Majesty,  which  need  to  be  ex- 
amined and  decided  by  the  public  officers  of  the  two  nations, 
it  is  agreed  between  the  governments  of  the  United  States 
and  China  that  such  cases  shall  be  tried  by  the  proper  official 
of  the  nationality  of  the  defendant." 

NEUTRALIZED    STATES. 

13.  A  neutralized  state  is  one  virhich  by  international  agree- 

ment is  bound  to  abstain  from  offensive  hostilities 
and  from  acts  w^hich  -nrould  involve  such  hostilities. 

Neutralization  usually  has  for  its  object  the  guarantee  of 
the  peace  of  the  neutralized  area.  The  neutralized  state  may 
enter  into  treaties  or  agreements  with  other  states  which 
would  involve  only  peaceful  relations,  but  must  not  resort  to 
war,  unless  for  its  own  defense.  In  return  for  this  absten- 
tion the  neutralized  state  is  guaranteed  in  its  security  and  in- 
tegrity.^^ 

1''  By  the  declaration  of  the  eight  powers  on  INIarch  20,  1815,  to 
which  Switzerland  acceded  May  27,  1815,  it  was  set  forth: 

"That  as  soon  as  the  Helvetic  Diet  shall  have  duly  and  formally 


§  14)  MEMBERS    OF   POLITICAL   UNIONS.  33 

The  Convention  for  the  Neutralization  of  Switzerland  was 
signed  by  six  powers  in  1815 ;  of  Belgium  by  six  powers  in 
1839 ;  of  the  Ionian  Islands  by  five  powers  in  1863,  and  by 
four  powers  in  1864;  of  Luxemburg  by  eight  powers  in  1867; 
and  of  the  Congo  Free  State  by  fourteen  powers  in  1881. 

The  degree  of  power  residing  in  a  neutralized  state  may  be 
determined  by  the  treaty  by  which  it  is  given  its  status,  or 
may  be  left  without  specific  statement. 

Neutralization  does  not  necessarily  detract  from  the  position 
of  honor  to  which  a  state  is  entitled  in  the  family  of  nations, 
though  restricting  the  right  to  undertake  hostilities,  except 
for  defense  of  its  dominion. 


MEMBERS    OF   POLITICAIi   UNIONS. 

14.    Tlie  status  of  members   of  political   unions  varies   as   the 
nature   of   the   union   is   more   or   less   complete.      Such 
unions  include: 
(a)    Personal    unions, 
(h)    Real  unions. 

(c)  Confederations. 

(d)  Federal    unions. 

In  general,  the  relationships  of  members  of  political  unions 
belong  rather  to  the  field  of  constitutional  law  than  to  inter- 
acceded  to  the  stipulations  contained  in  ttie  present  instrument,  an 
act  shall  be  prepared  containing  the  acknowledgment  and  the  guar- 
antee, of  the  part  of  all  the  powers,  of  the  perpetual  neutrality  of 
Switzerland,  in  her  new  frontiers."  1  Hertslet,  Map  of  Europe,  by 
Treaty,  p.  65. 

The  treaty  of  London,  November  15,  1831,  between  the  five  powers 
and  Belgium,  provided: 

"Art.  VII.  Belgium  within  the  limits  specified  in  articles  I,  II, 
and  IV,  shall  form  an  independent  and  perpetually  neutral  state. 
It  shall  be  bound  to  observe  such  neutrality  towards  all  other  states." 

"Art.  XXVI.  In  consequence  of  the  stipulations  of  the  present 
treaty  there  shall  be  peace  and  friendship  between  their  majesties 
the  King  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  the 
Emi>eror  of  Austria,  the  King  of  the  French,  the  King  of  Prussia, 
and  the  Emperor  of  all  the  Russias,  on  the  one  part,  and  his  majesty 
the  King  of  the  Belgians  on  the  other  part,  their  heirs  and  succes- 
sors, their  respective  states  and  subjects,  forever."  2  Hertslet,  Map 
of  Europe  by  Treaty,  p.  863. 
Wirs.lNT.L. — 3 


34  PERSONS   IN   INTEKNATIONAL   LAW.  (Cll.  1 

national  law.  Yet  in  some  cases  the  members  of  the  union 
may  possess  a  qualified  international  status,  even  after  the 
•union. 

(a)  The  term  "personal  union"  is  applied  to  such  states  as, 
even  though  having  distinct  governmental  organizations  and 
international  personalities,  are  under  a  single  head.  There 
have  been  numerous  instances  of  such  unions.  One  of  the 
longest  in  history  was  that  of  Great  Britain  and  Hanover, 
from  1714  to  1837,  when  the  union  ceased  on  thp  accession  of 
Victoria,  who  under  Hanoverian  law  would  not  be  the  next  in 
line  of  succession. 

The  union  of  the  Netherlands  and  the  Grand  Duchy  of 
Luxemburg  similarly  ceased  in  1890  on  the  death  of  William 
HI  and  the  accession  of  Wilhelmina.^*'  The  Belgian  Legis- 
lature in  1885  authorized  Leopold  H  of  Belgium  to  assume 
the  sovereignty  of  the  Congo  Free  State.  The  union  was, 
however,  to  be  purely  personal. 

(b)  When  the  union  is  not  merely  personal,  but  also  such 
that,  for  foreign  relations,  there  is  in  the  main  only  a  single 
international  personality,  there  is  said  to  be  a  real  union. 
Sweden  and  Norway  from  1815  to  1905,  and  Austria  and 
Hungry  since  1867,  are  examples  of  such  unions. 

(c)  In  a  confederation  the  international  personality  of  the 
members  may  not  be  destroyed,  though  it  may  be  limited,  and 
in  the  person  of  the  confederation  a  new  unity  may  appear. 
The  German  Confederation  from  1815  to  18G6,  and  the  United 
States  of  America  from  1781  to  1789,  afford  examples  of 
confederation. 

(d)  When  the  external  sovereignty  of  several  states  passes 
to  a  central  organization,  which  has  the  power  to  exercise 
this  sovereignty,  a  federation  or  federal  union  arises.  The 
United  States  of  America  since  1789,  Switzerland,  and  sev- 
eral of  the  Central  and  South  America  states  are  of  this  form. 

The  German  Empire  since  1871  has  for  international  law 
possessed  certain  characteristics  of  both  federation  and  con- 
federation ;  e.  g.,  some  of  the  states  of  the  Empire  have  the 
right  of  legation,  the  right  to  grant  exequaturs,  and  a  limited 

16  This  union  was  instituted  under  the  Family  Compact  of  July 
.30.  1783.     4  Hertslet,  3289. 


§  15)  PROTECTED    STATES.  3,5 

right  to  make  conventions  with  foreign  powers.  The  Em- 
peror, however,  for  most  matters,  represents  the  German 
Empire. 

PROTECTED    STATES. 

15.  "When  a  state  resigns  the  control  of  a  part  of  its  sover- 
eign functions  to  another  state,  or  to  other  states,  it 
is  nnder  a  protectorate.  The  degree  of  authority  ex- 
ercised by  the  protecting  state  varies  greatly  in  dif- 
ferent cases. 

The  existence  of  a  state  is  not  destroyed  by  coming  under 
a  protecting  state,  though  it  is  often  a  step  toward  annexation 
by  the  protecting  state. 

The  tiny  repubHc  of  Andorra,  about  twenty  by  thirty  miles 
in  area,  in  the  Pyrenees,  has  for  more  than  six  hundred  years- 
been  under  a  joint  Franco-Spanish  protectorate.  The  repubhc; 
of  San  Marino,  about  thirty-two  square  miles  in  area,  is  an- 
other survival  from  early  times,  and  is  now  under  the  protec- 
tion of  Italy.^^  The  Principality  of  Monaco  was  also  for 
many  years  under  the  protection  of  Spain,  France,  or  Italy; 
but  since  1861  this  protection  has  not  been  exercised.  The 
Ionian  Islands  were  under  British  protection  from  1815  to 
1863. 

Outside  of  Europe,  particularly  in  Africa,  protectorates  of 
the  most  diverse  character  have  been  established  or  claimed. 
Many  of  these  have  already  become  parts  of  the  protecting 
state  and  have  lost  their  international  status.  By  the  agree- 
ment of  1884  Great  Britain  assumed  a  protectorate  over  the 
South  African  Republic  as  regard  most  foreign  affairs.  This 
was  terminated  by  war  and  absorption  in  1903,  when  the 
former  republic  became  a  part  of  the  British  Empire.  France 
claimed  a  protectorate  over  Madagascar  by  the  treaty  of  1885. 
The  United  States  and  Great  Britain  acknowledged  the  exist- 
ence of  the  protectorate  in  1890,  and  Madagascar  with  the 

17  Article  XXXVIII  of  the  Convention  between  Italy  and  San 
Marino  of  March  27,  18G2,  states  that  "the  Republic  of  San  Marino, 
having  every  reason  to  trust  that  it  will  never  be  deprived  of  His 
Majesty  the  King  of  Italy's  protecting  friendship  for  the  preserva- 
tion of  its  very  ancient  liberty  and  independence,  declares  that  it 
will  not  accept  the  protection  of  any  other  power  whatever." 


36  PERSONS  IN  INTERNATIONAL  LAW.  (Cll.  1 

islands  dependent  was  declared  a  French  colony  in  1896.  A 
treat}'  of  1889  between  Abyssinia  and  Italy  was  interpreted 
by  Italy  as  establishing-  a  protectorate  over  Abyssinia ;  but 
Abyssinia  denied  this.  In  1895  an  armed  struggle  broke  out, 
and  as  a  result  Italy  recognized,  in  the  treaty  of  October  26, 
1896,  "the  independence,  absolute  and  without  reserve,  of  the 
Empire  of  Ethiopia." 

In  certain  instances  colonies,  protectorates,  or  other  posses- 
sions are  granted  in  international  negotiations  a  large  measure 
of  equality  with  full  states.  The  Berlin  International  Wireless 
Telegraph  Convention  of  1906  provides  for  the  representation 
and  adhesion  of  "Colonies,  Possessions,  or  Protectorates."  ^' 

18  The  Final  Protocol  of  the  Berlin  International  Wireless  Tele- 
graph Convention  of  November  3,  1906,  provides: 

"I. 

"The  high  contracting  parties  agree  that  at  the  next  conference 
the  number  of  votes  which  each  country  shall  have  (article  12  of  the 
convention)  shall  be  determined  at  the  outset  of  the  deliberations,  so 
that  the  colonies,  possessions,  or  i3rotectorates  admitted  to  the  en- 
n'oyment  of  votes  may  be  able  to  exercise  their  right  of  voting 
throughout  all  the  proceedings  of  the  conference. 

"The  decision  arrived  at  shall  have  immediate  effect,  and  shall 
remain  in  force  until  it  is  varied  by  a  later  conference. 

''So  far  as  the  next  conference  is  concerned,  proposals  for  admis- 
sion of  new  votes  in  favor  of  colonies,  possessions,  or  protectorates 
which  may  have  adhered  to  the  convention  shall  be  addressed  to  the 
International  Bureau  six  months  at  least  before  the  date  of  meeting 
of  that  conference.  These  proposals  shall  immediately  be  notified 
to  the  other  contracting  governments,  which  may,  within  a  period 
of  two  months  from  the  receipt  of  the  notification,  put  forward 
similar  proposals." 

"The  adhesion  to  the  convention  of  the  government  of  a  country 
having  colonies,  possessions,  or  protectorates  does  not  imply  the  ad- 
hesion of  its  colonies,  possessions,  or  protectorates,  in  the  absence  of 
a  declaration  to  that  effect  on  the  part  of  such  government.  A  sep- 
arate adhesion  or  a  separate  denunciation  may  be  made  in  respect 
of  the  whole  of  such  colonies,  possessions,  or  protectorates,  taken 
together,  or  in  respect  of  each  of  them  separately,  under  the  condi- 
tions laid  down  in  articles  16  and  22  of  the  convention. 

"It  is  iinderstood  that  stations  on  board  ships  having  their  port 
of  registry  in  a  colony,  possession,  or  protectorate  may  be  deemed 
to  be  subject  to  the  authority  of  such  colony,  possession,  or  pro- 
tectorate." 


§  15)  PROTECTED    STATES.  37 

The  status  of  a  political  unity  under  a  protecting  state  may 
be  that  of  almost  complete  independence,  or  of  such  depend- 
ence as  to  deprive  it  of  any  stanJini^  as  a  person  in  interna- 
tional law,  even  though  the  protected  state  may  have  control 
of  its  internal  affairs. ^^ 

A  political  unity  which  has  only  the  powers  granted  to  it  by 
the  state  of  which  it  is  a  part,  and  is  in  general  involved  in  the 
consequences  of  any  action  which  the  superior  may  take,  is 
usually  regarded  as  under  a  suzerain,  and  as  having  no  inter- 
national status. 

The  degrees  of  international  relationship  vary  so  much, 
however,  that  it  is  not  always  possible  to  agree  whether  a  giv- 
en instance  is  of  the  nature  of  a  protectorate  or  of  a  suzerain- 
ty, and  sometimes  characteristics  of  both  may  clearly  appear, 

Egypt,  by  firman  of  June  8,  1873,  may  make  commercial 

19  By  an  agreement  between  France,  Great  Britain,  Italy,  and  Rus- 
sia in  1S9S,  Crete  was  made  an  autonomous  state  under  a  High 
Commissioner  of  ttie  Powers,  not  paying  tribute,  but  under  the  su- 
zerainty of  the  Sultan.  The  foreign  relations  were  to  be  controlled 
by  representatives  of  the  four  powers. 

Japan  assumed  control  over  foreign  relations  of  Corea  by  agree- 
ment of  November  17,  1905,  in  which  Corea  covenants  "not  to  con- 
clude hereafter  any  act  or  engagement  having  an  international  char- 
acter except  through  the  medium  of  the  government  of  Japan." 

By  the  treaty  between  the  United  States  and  Cuba,  signed  'May 
22,  1903,  the  relations  of  these  two  states  are  shown: 

"Article  I.  The  government  of  Cuba  shall  never  enter  into  any 
treaty  or  other  compact  with  any  foreign  powder  or  powers  which 
will  impair  or  tend  to  impair  the  independence  of  Cuba,  nor  in  any 
manner  authorize  or  permit  any  foreign  power  or  powers  to  obtain 
by  colonization  or  for  military  or  naval  purposes,  or  otherwise,  lodg- 
ment in  or  control  over  any  portion  of  said  island. 

"Article  II.  The  government  of  Cuba  shall  not  assume  or  contract 
any  public  debt  to  pay  the  interest  upon  which,  and  to  make  reason- 
able sinking-fund  provision  for  the  ultimate  discharge  of  which, 
the  ordinary  revenues  of  the  Island  of  Cuba,  after  defraying  the 
current  expenses  of  the  government,  shall  be  inadequate. 

"Article  III.  The  government  of  Cuba  consents  that  the  United 
States  may  exercise  the  right  to  Intervene  for  the  preservation  of 
Cuban  independence,  the  maintenance  of  a  government  adequate 
for  the  protection  of  life,  property,  and  individual  liberty,  and  for 
discharging  the  obligations  with  respect  to  Cuba  imposed  by  the 
Treaty  of  Paris  on  the  United  States,  now  to  be  assumed  and  under- 
taken by  the  government  of  Cuba." 


38  PERSONS   IN  INTKRNATIONAL   LAW.  (Ch.  1 

treaties  and  maintain  an  army,  but  pays  tribute  to  the  Sultan 
of  Turkey.  In  1878  a  dual  control  over  Egyptian  finances 
was  assumed  by  Great  Britain  and  France.  In  1881,  owing  to 
unsettled  conditions  and  the  stress  upon  France  elsewhere, 
Great  Britain  entered  upon  a  "temporary  occupation"  of 
Egypt,  which,  continuing  since  that  time,  has  given  to  Egypt 
a  large  degree  of  British  administration.  Even  under  these 
conditions  Great  Britain  made  a  convention  with  Egypt,  Janu- 
ary 19,  1899,  by  which  Anglo-Egyptian  Soudan  is  to  be  ad- 
ministered by  a  Governor-General,  appointed  by  Egypt  with 
the  assent  of  Great  Britain,  and  in  the  territory  under  this 
condominium  the  British  and  Egyptian  flags  are  to  be  used 
together.  By  the  Anglo-French  declaration  of  April  8,  1904, 
respecting  Egypt  and  Morrocco,  "the  government  of  the 
French  Republic  for  their  part  declare  (as  regards  Egypt)  that 
they  will  not  obstruct  the  action  of  Great  Britain  in  that  coun- 
try by  asking  that  a  limit  of  time  be  fixed  for  the  British  oc- 
cupation or  in  any  other  way."  Thus  a  political  unity,  from 
earliest  times  subject  to  many  vicissitudes,  while  under  a 
suzerain,  is  "temporarily  occupied"  by  a  foreign  state,  which, 
while  "occupying,"  concludes  a  convention  with  it  in  regard 
to  the  government  of  outside  territory,  and  also  makes  an 
agreement  with  another  foreign  state  as  to  freedom  from  re- 
striction as  to  "occupancy"  and  in  other  matters. 

One  of  the  most  attenuated  relations  somewhat  analogous 
to  a  protectorate  is  that  established  by  a  treaty  of  Germany, 
Great  Britain,  France,  Norway,  and  Russia  of  November  2, 
1907,  by  which  Norway  undertakes  "not  to  cede  any  portion 
of  the  territory  of  Norway  to  any  power  to  hold  on  a  title 
founded  either  on  occupation  or  on  any  other  ground  whatso- 
ever." The  other  powers  "recognize  and  undertake  to  respect 
the  integrity  of  Norway." 

"If  the  integrity  of  Norway  is  threatened  or  impaired  by 
any  power  whatsoever,  the  German,  French,  British,  and 
Russian  governments  undertake,  on  the  receipt  of  a  previous 
communication  to  this  effect  from  the  Norwegian  government, 
to  afford  to  that  government  their  support,  by  such  means  as 
may  be  deemed  the  most  appropriate,  with  a  view  to  safe- 
guarding the  integrity  of  Norway." 


§  16)  BELLIGERENTS.  39 

Much  has  been  written  upon  the  nature  of  the  relationship 
in  cases  of  protectorate  or  suzerainty,  which  particularly 
shows  how  diverse  are  the  conditions  and  how  impossible  in 
definition  is  precision  sufficient  to  cover  all  cases. 

In  practice  it  is  recognized,  also,  that  certain  political  unities 
not  possessing  sovereignty  and  certain  other  bodies  have  a 
limited  status  as  persons  in  international  law. 

BEIililGERENTS. 

16.  'When  states  engage  in  armed  conflict,  those  thus  engaged 
are  called  "belligerents."  The  law^s  of  xear  and  neu- 
trality come  into  operation. 
These  laxurs  may  also  become  operative  xrhen  a  community 
by  force  of  arms  attempts  to  free  itself  from  the  ju- 
risdiction of  the  parent  state,  or  when  a  state  within 
the  family  of  nations  engages  in  w^ar  against  a  com- 
munity outside  the  family.  Both  belligerents,  so  far 
as  belligerency  is  recognized,  have  a  like  status  as 
regards  international  law  relating  to  the  conduct  of 
hostilities. 

The  recognition,  of  the  belligerency  of  independent  states 
does  not  affect  the  existence  of  the  states,  or  create  new  uni- 
ties having  international  status. 

The  recognition  of  the  belligerency  of  a  community  in  re- 
volt against  the  parent  state  gives,  so  far  as  the  recognizing 
state  is  concerned,  to  the  revolting  community  the  same  inter- 
national status  as  regards  the  conduct  of  the  war  as  is  pos- 
sessed by  the  parent  state,  and  to  that  extent  recognizes  a  new 
international  unity.  Similarly  the  recognition  of  the  existence 
of  belligerency  between  a  state  and  a  community  outside  the 
family  of  nations  makes  the  community  an  international  per- 
son as  regards  the  conduct  of  war.  As  was  said  in  the  case 
of  The  Three  Friends  in  1897,  "agreeably  to  the  principles  of 
international  law  and  the  reason  of  the  thing,  the  recognition 
of  belligerency,  while  not  conferring  all  the  rights  of  an  in- 
dependent state,  concedes  to  the  government  recognized  the 
rights,  and  imposes  upon  it  the  obligations,  of  an  independent 
state  in  matters  relating  to  the  war  being  waged."  ^^ 

2  0  166  U.  S.  1,  17  Sup.  Ct.  495,  41  L.  Ed.  897. 


40  PERSONS   IN  INTERNATIONAL  LAW.  (Ch.  1 


RECOGNITION    OF    BELLIGERENCY. 

17.  (a)  Reccjjnition  of  tlie  belligerency  of  a  revolting  com- 
mnnity  by  a  foreign  state  is  an  act  of  the  political 
department  of  the  government  of  tlie  recognizing  state, 
and  if  premature,  or  ■witbout  reasonable  grounds,  may 
be  regarded  by  tbe  parent  state  as  cause  for  xv&t. 
Sucb  recognition  gives  to  the  recognized  revolting  com- 
munity a  legal  war  status  as  regards  the  recognizing 
state, 
(b)  Recognition  of  belligerency  of  a  revolting  community 
by  the  parent  state  gives  the  revolting  community  a 
general  ivar  status  as  regards  all  states. 

(a)  Recognition  of  belligerency  of  a  revolting  community 
by  a  foreign  state  is  not  obligatory,  but  when  once  granted 
gives  rise  to  new  legal  relations,  which  cannot  justly  be  dis- 
claimed during  the  continuance  of  the  conditions  under  which 
they  were  assumed.  As  the  relations  may  affect  other  states, 
particularly  the  parent  state,  recognition,  once  granted,  is  gen- 
erally held  to  be  irrevocable.^^ 

As  recognition  brings  such  consequences,  it  is  a  matter 
wholly  within  the  competence  of  the  political  department  of 
the  government,  and  by  the  action  of  this  department  all  other 
departments  are  bound.-' 

The  method  by  which  recognition  is  accorded  to  a  revolting 
community  by  a  foreign  state  is  usually  by  the  issue  of  a  dec- 
laration of  neutrality,  though  some  states  make  known  their 
position  by  other  formal  action.-^ 

21  1  Moore,  International  Law  Digest,  pp.  164-205,  §§  5&-71. 

2  2  "But  it  belongs  to  the  political  department  to  detennine  when 
beiligerency  shall  be  recognized,  and  its  action  must  be  accepted  ac- 
cording to  the  terms  and  intention  expressed."  The  Three  Friends, 
166  U.  S.  1,  17  Sup.  Ct.  495,  41  D.  Ed.  897;  U.  S.  v.  One  Hundred 
Barrels  of  Cement,  27  Fed.  Cas.  292. 

2  3  Great  Britain  recognized  the  belligerency  of  the  (Confederate 
States  of  America  in  the  proclamation  of  May  13,  1861: 

"WTiereas,  we  are  happily  at  peace  with  all  sovereign  powers  and 
states ; 

"And  whereas,  hostilities  have  unhappily  commenced  between  the 
government  of  the  United  States  of  America  and  certain  states 
styling  themselves  the  Confederate  States  of  America ; 

"And  whereas,   we,   being  at  peace   with   the  government  of  the 


§  17)  RECOGNITION    OF   BELLIGERENCY.  41 

Recognition  of  the  belligerency  of  a  revolting  community  by 
a  foreign  state  before  that  community  has  shown  its  ability 
to  resist  in  an  orderly  manner  the  forces  of  the  parent  state, 
or  when  the  relations  of  the  recognizing  state  are  not  to  any 
considerable  extent  disturbed,  is  usually  regarded  by  the  par- 
ent state  as  premature,  and  as  an  evidence  of  an  unfriendly 
disposition  on  the  part  of  the  recognizing  state. 

Recognition  releases  the  parent  state  from  all  responsibility 
to  the  recognizing  state  for  acts  of  recognized  belligerents. 
The  recognizing  state  may  hold  the  belligerent  community  re- 
sponsible for  its  acts,  if  the  community  establishes  its  inde- 
pendence. If  the  belligerent  community  fails  to  establish  it- 
self, the  recognizing  state  can  hold  no  one  responsible  for  acts 
of  the  revolting  community  subsequent  to  the  date  of  recogni- 
tion of  belligerency.  After  recognition  of  belligerency  the 
revolting  community  has  as  regards  the  recognizing  state  the 
same  war  status  as  the  parent  state.  Such  recognition  does 
not,  however,  affect  their  relations  to  other  states. 

The  note  of  Dana  in  his  edition  of  Wheaton  of  1866  con- 
tains a  brief  statement  of  the  principles  which  since  that  time 
have  in  the  main  been  followed : 

"The  occasion  for  the  accordance  of  belligerent  rights  arises 
when  a  civil  conflict  exists  within  a  foreign  state.  The  reason 
which  requires,  and  can  alone  justify,  this  step  by  the  govern- 
ment of  another  country,  is  that  its  own  rights  and  interests 
are  so  far  affected  as  to  require  a  definition  of  its  own  relations 
to  the  parties.  Where  a  parent  government  is  seeking  to  sub- 
due an  insurrection  by  municipal  force,  and  the  insurgents 
claim  a  political  nationality  and  belligerent  rights,  which  the 
parent  government  does  not  concede,  a  recognition  by  a  for- 

United  States,  have  declared  our  royal  determination  to  maintain  a 
strict  and  impartial  neutrality  in  the  contest  between  the  said  con- 
tending parties: 

"We,  therefore,  have  thought  fit,  by  (and  with)  the  advice  of  our 
Privy  Council,  to  issue  this  our  royal  proclamation. 

"And  we  do  hereby  strictly  charge  and  command  all  our  loving 
subjects  to  observe  a  strict  neutrality  in  and  during  the  aforesaid 
hostilities,  and  to  abstain  from  violating  or  contravening  either  the 
laws  and  statutes  of  the  realm  in  this  behalf  or  the  law  of  nations 
in  relation  thereto,  as  they  will  answer  to  the  contrary  at  their 
peril." 


42  PERSONS  IN  INTERNATIONAL  LAW.  (Ch.  1 

eign  state  of  full  belligerent  rights,  if  not  justified  by  necessity, 
is  a  gratuitous  demonstration  of  moral  support  to  the  rebellion, 
and  of  censure  upon  the  parent  government.  But  the  situa- 
tion of  a  foreign  state  with  reference  to  the  contest,  and  the 
condition  of  affairs  between  the  contending  parties,  may  be 
such  as  to  justify  this  act.  It  is  important,  therefore,  to  de- 
termine what  state  of  affairs,  and  what  relations  of  the  foreign 
state,  justify  the  recognition. 

"It  is  certain  that  the  state  of  things  between  the  parent 
state  and  insurgents  must  amount  in  fact  to  a  war,  in  the  sense 
of  international  law;  that  is,  powers  and  rights  of  war  must 
be  in  actual  exercise.  Otherwise  the  recognition  is  falsified, 
for  the  recognition  is  of  a  fact.  The  tests  to  determine  the 
question  are  various,  and  far  more  decisive  where  there  is 
maritime  war  and  commercial  relations  with  foreigners. 
Among  the  tests  are  the  existence  of  a  de  facto  political  or- 
ganization of  the  insurgents,  sufficient  in  character,  population, 
and  resources,  to  constitute  it,  if  left  to  itself,  a  state  among 
the  nations  reasonably  capable  of  discharging  the  duties  of  a 
state ;  the  actual  employment  of  military  forces  on  each  side, 
acting  in  accordance  with  the  rules  and  customs  of  war,  such 
as  the  use  of  flags  of  truce,  cartels,  exchange  of  prisoners, 
and  the  treatment  of  captured  insurgents  by  the  parent  state 
as  prisoners  of  war ;  and,  at  sea,  employment  by  the  insur- 
gents of  commissioned  cruisers,  and  the  exercise  by  the  parent 
government  of  the  rights  of  blockade  of  insurgent  ports 
against  neutral  commerce,  and  of  stopping  and  searching  neu- 
tral vessels  at  sea.  If  all  these  elements  exist,  the  condition  of 
things  is  undoubtedly  war ;  and  it  may  be  war  before  they  are 
all  ripened  into  activity."  ^* 

24  "The  occasiou  for  the  accordance  of  belligerent  rights  arises 
when  a  civil  conflict  exists  within  a  foreign  state.  The  reason  which 
requires  and  can  alone  justify  this  step  by  the  government  of  an- 
other country  is  that  its  own  rights  and  interests  are  so  far  affected 
as  to  require  a  definition  of  its  own  relations  to  the  parties.  Where 
a  parent  government  is  seeking  to  subdue  an  insurrection  by  mu- 
nicipal force,  and  the  insurgents  claim  a  political  nationality  and 
belligerent  rights,  which  the  parent  government  does  not  concede, 
a  recognition  by  a  foreign  state  of  full  belligerent  rights,  if  not  jus- 
tified by  necessity,  is  a  gratuitous  demonstration  of  moral  support  to 
the  rebellion,  and  of  censure  upon  the  parent  government.     But  the 


§  18)  INSURGENCY.  43 

(b)  The  parent  state  may  recog-nize  the  belligerency  of  a 
revolting  community  by  acts  which  imply  the  existence  of  war 
or  by  formal  declaration.  Either  course  may  justify  recogni- 
tion by  foreign  states.  The  British  proclamation  of  neutrality 
of  INIay  14,  1861,  was  justified  by  President  Lincoln's  procla- 
mation of  a  blockade  on  April  19,  1861,  which  announced  that 
action  against  vessels  permissible  only  in  time  of  war  would 
be  taken  by  the  United  States.-^ 

INSURGENCY. 

18.  The  status  of  insurgency  is  sometimes  admitted  in  cases 
iv^Iiere  there  is  'vrithin  a  state  an  organized  body  of 
men  pursuing  public  ends  by  force  of  arms,  and  tem- 
porarily beyond  the  control  of  the  civil  authority. 

The  Constitution  of  the  United  States  provides  for  the  call- 
ing forth  of  the  militia  to  suppress  insurrections.-®  Messages 
of  the  Presidents  have  frequently  mentioned  that  insurrections 
existed  in  foreign  states.-^     Decisions  of  the  courts,  both  in 

situation  of  a  foreign  state  with  reference  to  the  contest,  and  the 
condition  of  affairs  between  the  contending  parties,  may  be  such  as 
to  justify  this  act.  It  is  important,  therefore,  to  determine  what 
state  of  affairs,  and  what  relations  of  the  foreign  state,  justify  the 
recognition."  Wheaton,  International  Daw  (Dana's  Ed.)  p.  34,  note 
15.  This  was  followed  in  President  Grant's  message  of  December 
7,  1S75.  and  by  President  McKinley  December  6.  1897. 

2  5  "Now,  therefore,  I,  Abraham  Lincoln,  President  of  the  United 
States,  *  *  *  have  deemed  it  advisible  to  set  on  foot  a  blockade 
of  the  ports  within  the  states  aforesaid  in  pursuance  of  the  laws  of 
the  United  States  and  of  the  law  of  nations  in  such  case  provided. 
For  this  purpose  a  competent  force  will  be  posted  so  as  to  prevent 
entrance  and  exit  of  vessels  from  the  ports  aforesaid.  If,  therefore, 
with  a  view  to  violate  such  blocliade,  a  vessel  shall  approach,  or 
shall  attempt  to  leave,  any  of  the  said  ports,  she  will  be  duly  warned 
by  the  commander  of  one  of  the  blocliading  vessels,  who  will  indorse 
on  her  register  the  fact  and  the  date  of  such  warning;  and  if  the 
same  vessel  shall  again  attempt  to  enter  or  leave  the  blockaded 
port,  she  will  be  captured  and  sent  to  the  nearest  convenient  port, 
for  such,  proceedings  against  her  and  her  cargo  as  prize  as  may  be 
deemed   advisable." 

26  Article  1,  §  8. 

2  7  See  particularly  the  Presidents'  messages  from  18G8  to  1878  and 
from   1S95  to  1898. 


44  PERSONS  IN  INTERNATIONAL   LAW.  (Cll.  1 

the  United  States  and  foreign  states,  have  admitted  the  ex- 
istence of  insurgency.^®  In  1896  the  Supreme  Court  of  the 
United  States  declared,  in  the  case  of  The  Three  Friends: 
"The  distinction  between  recognition  of  belligerency  and  rec- 
ognition of  a  condition  of  political  revolt,  between  recognition 
of  the  existence  of  war  in  a  material  sense  and  war  in  a  legal 
sense,  is  sharply  illustrated  by  the  case  before  us.  For  here 
the  political  department  has  not  recognized  the  existence  of  a 
de  facto  belligerent  power  engaged  in  hostility  with  Spain,  but 
has  recognized  the  existence  of  insurrectionary  warfare  pre- 
vailing before,  at  the  time,  and  since  this  forfeiture  is  alleged 
to  have  been  incurred."  In  1895  President  Cleveland  issued 
a  proclamation  practically  putting  into  operation  the  neutrality 
laws,  though  not  declaring  neutrality,  as  no  belligerency  had 
been  recognized.^*  Frequent  attempts  have  been  made  by  the 
parent  state  to  put  those  rebelling  against  its  authority  beyond 
the  pale  of  law.  Such  claims  have  been  unifonnly  resisted, 
though  the  right  of  revolution  has  been  conceded.^" 

It  is  fully  established  that  decrees  of  the  parent  state  putting 
those  in  insurrection  against  it  beyond  the  pale  of  law,  or  con- 
demning them  to  unusual  treatment,  are  not  binding  upon 
foreign  states.  Such  a  decree  may  be  regarded  as  an  admis- 
sion by  the  parent  state  of  the  existence  of  an  insurrection 
within  its  borders.  The  legitimate  government  cannot  in  any 
way  throw  the  burden  of  executing  its  decrees  upon  a  foreign 
state.  Even  its  decrees  of  closure  in  time  of  insurrection  must 
be  supported  by  sufficient  force  to  render  them  effective. 

The  United  States  was  early  in  the  Civil  War  forced  to  give 
up  the  claims  that  the  Confederate  cruisers  were  piratical  and 
that  other  forces  were  bands  of  outlaws. 

Attempts  were  also  made  in  1885  to  induce  the  United  States 
to  prevent  the  sale  of  arms  to  the  Colombian  insurgents,  but 
Mr.  Bayard  said  in  a  letter  of  March  25,  1885 : 

"That  the  existence  of  a  rebellion  in  Colombia  does  not  au- 

28  The  Three  Friends,  IGG  U.  S.  1,  17  Sup.  Ct.  495,  41  L.  Ed.  897 ; 
Underhill  v.  Hernandez,  168  U.  S.  250,  18  Sup.  Ct.  83,  42  L.  Ed.  45U ; 
The  Salvador,  L.  R.  3  P.  C.  218. 

2  9  Proclamation  of  June  12,  1895,  9  Richardson,  Messages  and  Pa- 
pers of  the  Presidents,  591. 

3  0  Foreign  Relations  U.  S.,  1885,  p.  212. 


§  18)  INSURGENCY.  45 

thotize  the  public  officials  of  the  United  States  to  obstruct  or- 
dinary commerce  in  arms  between  citizens  of  this  country  and 
the  rebellious  or  other  parts  of  the  territory  of  the  Republic 
of  Colombia."  ^^ 

Attempts  have  also  been  made  by  the  parent  state  to  obtain 
advantages  of  a  blockade  without  the  obligations  of  war 
through  a  proclamation  declaring  ports  held  by  insurgents 
closed.  Foreign  states  have,  however,  usually  taken  the  posi- 
tion that  such  decrees  are  of  no  effect,  and  the  ports  in  the 
hands  of  the  insurgents  are  closed  only  to  the  extent  to  which 
an  effective  force  may  physically  prevent  entrance. 

The  parent  state  cannot  prescribe  the  attitude  which  a  for- 
eign state  shall  assume  toward  insurgents.  It  is,  however, 
within  the  competence  of  the  foreign  state  to  determine  its 
own  attitude  toward  insurgents,  so  far  as  this  may  accord  with 
the  laws  of  humanity  and  its  obligations  to  a  friendly  state. 
The  foreign  state  has  full  right  to  deny  to  the  insurgents  the 
right  to  exercise  any  belligerent  rights  toward  its  subjects. 
A  foreign  state,  for  example,  would  not  be  under  any  obliga- 
tion to  allow  the  exercise  of  the  right  of  visit  or  search  of  its 
vessels,  and,  if  its  vessels  were  seized  by  insurgents,  the  war 
vessels  of  the  foreign  state  might  rescue  them  on  the  high  seas. 
Admiral  Benham,  at  the  time  of  the  Brazilian  revolt  of  1893- 
94  took  a  position  which  has  been  generally  approved.  He 
maintained  that  American  merchant  vessels  in  the  harbor  of 
Rio  Janeiro  were  liable  to  risk  if  they  came  within  the  field 
of  actual  hostile  operations  during  the  continuance  of  an  en- 
gagement, but  that  interference  by  insurgents  with  legitimate 
movements  of  American  merchant  vessels  at  other  times  would 
not  be  permitted.^^ 

Yet  acts  of  the  insurgents  are  liable  to  such  penalties  as  the 
parent  state  may  inflict.  Foreign  states  do  not  generally  take 
extreme  measures  against  insurgents.  They  do  not  permit 
insurgents  to  exercise  the  right  of  visit  and  search  on  the  high 
seas,  as  the  obligation  to  submit  to  this  interference  with  the 


81  Foreign  Relations  U.  S.,  1S85,  p.  238. 

3  2  Foreign  Relations  U.  S.,  1893,  p.  116,  ff.  Admiral  Benham's 
position  was  sanctioned  in  the  opinion  of  the  Institute  of  Internation- 
al Law  in  its  session  of  1901. 


46  PERSONS   IN   INTERNATIONAL   LAW.  (Ch.  1 

freedom  of  commerce  rests  upon  a  neutral  only  when  there 
is  war,  and  until  there  is  war  there  can  be  no  neutral  in  the 
sense  of  international  law.  The  right  of  visit  and  search  is, 
of  course,  denied  during  an  insurrection  to  the  parent  state 
on  the  same  grounds  as  to  the  insurgent. 

As  regards  relations  of  insurgents  and  parent  state,  it  may 
be  said  that  they  must  so  far  as  possible  observe  the  rules  of 
civilized  warfare.  This  is  expedient,  in  order  that  the  parent 
state  may  maintain  the  respect  of  sister  states,  and  in  order 
that  the  insurgents  may,  if  successful,  be  more  readily  ad- 
mitted into  the  family  of  nations. 

A  foreign  state  would  not  permit  the  parent  state  to  pre- 
scribe the  attitude  which  the  foreign  government  should  as- 
sume toward  its  insurgent  subjects.  A  foreign  state  would  not 
permit  the  insurgents  to  prescribe  what  attitude  the  foreign 
government  should  assume  toward  other  parties  involved  in 
the  insurrection.  Probably  the  most  frequent  action  of  this 
kind  on  the  part  of  the  insurgents  is  seen  in  the  attempt  of 
the  insurgents  to  proclaim  blockades.  It  is  clear,  however, 
that  blockade  is  a  war  measure,  and  involves  the  existence  of 
courts  to  pass  upon  its  violations  and  to  decree  penalties.  In 
absence  of  such  responsible  courts,  a  foreign  state  would  not 
be  under  obligation  to  respect  such  insurgent  proclamation. 

As  Secretary  Hay  said  in  a  letter  to  the  Secretary  of  Navy, 
November  15,  1902 : 

"It  seems  important  to  discriminate  between  the  claim  of  a 
belligerent  to  exercise  quasi  sovereign  rights  in  accordance 
with  the  tenets  of  international  law  and  the  conduct  of  hostili- 
ties by  an  insurgent  against  the  titular  government. 

"The  formal  right  of  the  sovereign  extends  to  acts  on  the 
high  seas,  while  an  insurgent's  rig^ht  to  cripple  his  enemy  by 
any  usual  hostile  means  is  essentially  domestic  within  the  ter- 
ritory of  the  titular  sovereign  whose  authority  is  contested. 
To  deny  to  an  insurgent  the  right  to  prevent  the  enemy  from 
receiving  material  aid  cannot  well  be  justified  without  denying 
the  right  of  revolution.  If  foreign  vessels  carrying  aid  to  the 
enemies  of  the  insurgents  are  interfered  with  within  the  ter- 
ritorial limits,  that  is  apparently  a  purely  military  act  incident 
to  the  conduct  of  hostilities,  and,  like  any  other  insurgent  in- 


§  18)  INSURGENCr,  47 

terference  with  foreign  property  within  the  theater  of  insur- 
rection, is  effected  at  the  insurgent's  risk." 

He  also  maintained  that,  "within  the  territorial  limits  of  the 
country,  the  right  to  prevent  the  access  of  supplies  to  their 
enemy  is  practically  the  same  on  water  as  on  land — a  defensive 
act  in  the  line  of  hostility  to  the  enemy.  But  in  no  case  would 
the  insurgents  be  justified  in  treating  as  an  enemy  a  neutral 
vessel  navigating  the  internal  waters ;  their  only  right  being, 
as  hostiles,  to  prevent  the  access  of  supplies  to  their  domestic 
enemy.  The  exercise  of  this  power  is  restricted  to  the  precise 
end  to  be  accomplished.  No  right  of  confiscation  or  destruc- 
tion of  foreign  property  in  such  circumstances  could  well  be 
recognized,  and  any  act  of  injury  so  committed  against  for- 
eigners would  necessarily  be  at  the  risk  of  the  insurgents."  ^' 

Balmaceda,  in  1891,  declared  various  ports  of  Chili  closed. 
Some  of  the  European  states,  as  well  as  the  United  States, 
declined  to  respect  the  decree.  If  ports  in  the  possession  of 
the  insurgents  could  be  closed  by  decree,  there  would  be  a 
close  analogy  to  the  old  idea  of  a  paper  blockade.  The  prin- 
ciple has  come  to  be  generally  recognized  that  in  time  of  in- 
surrection closure,  to  be  respected,  must  be  by  effective  force. 

A  general  agreement  on  the  part  of  various  states  was 
shown  in  their  attitude  toward  the  Haitien  insurgents  in  1902. 
This  is  evident  in  the  letter  of  the  commander  of  the  U.  S.  S. 
Machias  to  the  insurgent  commander  on  August  10,  1902. 
The  letter  was  as  follows : 

"Sir:  I  wish  to  give  you  notice  that  I  am  charged  with 
the  protection  of  British,  French,  German,  Italian,  Spanish,, 
Russian,  and  Cuban  interests,  as  well  as  those  of  the  United 
States.  You  are  informed  also  that  I  am  directed  to  prevent 
the  bombardment  of  this  city  without  due  notice ;  also  to  pre- 
vent any  interference  with  commerce  by  the  interruption  of 
telegraph  cables  or  the  stoppage  of  steamers  engaged  in  inno- 
cent trade  with  a  friendly  power.  All  interference  excepting 
with  Haitien  interests,  I  shall  endeavor  to  prevent." 

That  insurgents  have  not  belligerent  status  is  sufficient  rea- 
son for  refusing  to  their  vessels  the  rights  of  belligerents  in 
foreign  ports. 

3  3  International  Law  Situations,  Naval  War  College,  1902,  p.  79. 


48  PERSONS   IN   INTERNATIONAL   LAW.  (Ch.  1 

Section  4295  of  the  United  States  Revised  Statutes  (U.  S. 
Comp.  St.  1901,  p.  2950)  made  it  lawful  for  a  private  vessel 
to  resist  the  aggression  of  an  insurgent  not  yet  recognized  as 
a  belligerent.     This  statute  provides  : 

"The  commander  and  crew  of  any  merchant  vessel  of  the 
United  States,  owned  wholly  or  in  part  by  the  citizens  there- 
of, may  oppose  and  defend  against  any  aggression,  search, 
restraint,  depredation  or  seizure  which  shall  be  attempted  up- 
on such  vessel,  or  upon  any  other  vessel  so  owned,  by  the  com- 
mander or  crew  of  any  armed  vessel  v^diatsoever,  not  being  a 
public  armed  vessel  of  some  nation  in  amity  with  the  United 
States,  and  may  subdue  and  capture  the  same ;  and  may  also 
retake  any  vessel  so  owned  which  may  have  been  captured  by 
the  commander  or  crew  of  any  such  armed  vessel,  and  send 
the  same  into  any  port  of  the  United  States." 

Insurgency  may  be  regarded  as  a  fact  which  is  generally  ac- 
cepted in  the  international  practice.  The  admission  of  this 
fact  is  by  such  domestic  means  as  may  seem  expedient.  This 
admission  is  made  with  the  object  of  bringing  to  the  knowl- 
edge of  citizens,  subjects,  and  officers  of  the  state  such  facts 
and  conditions  as  may  enable  them  to  act  properly.  In  the 
parent  state  the  method  of  conducting  the  hostilities  may  be  a 
sufficient  act  of  admission,  and  in  a  foreign  state  the  enforce- 
ment of  a  neutrality  law.  The  admission  of  insurgency  by  a 
foreign  state  is  a  domestic  act,  which  can  give  no  offense  to 
the  parent  state,  as  might  be  the  case  in  the  recognition  of  bel- 
ligerency. Insurgency  is  not  a  crime  from  the  point  of  view 
of  international  law.  A  status  of  insurgency  may  entitle  the 
insurgents  to  freedom  of  action  in  lines  of  hostile  conflict 
which  would  not  otherwise  be  accorded,  as  was  seen  in  Brazil 
in  1893-94,  and  in  Chili  in  1891.  It  is  a  status  of  potential 
belligerency  which  a  state,  for  the  purpose  of  domestic  order, 
is  obliged  to  recognize.  The  admission  of  insurgency  does  not 
place  the  foreign  state  under  new  international  obligations,  as 
would  the  recognition  of  belligerency,  though  it  may  make  the 
execution  of  its  domestic  laws  more  burdensome.  It  admits 
the  fact  of  hostilities,  without  any  intimation  as  to  their  extent, 
issue,  righteousness,  etc.  The  admission  of  the  existence  of 
this   status   of   insurgency    makes   unnecessary   much   of    the 


§  19)  LOSS   OR   MODIFICATION   OF    STATUS.  49 

earlier  diplomatic  circumlocution  prevailing  between  the 
state  divided  by  domestic  strife  and  foreign  states,  and  makes 
it  possible  for  states  to  conduct  negotiations  with  much  less 
liabilty  to  misunderstandings.  This  is  particularly  evident  in 
the  diplomatic  correspondence  of  late  years.  The  tendency  to 
depart  from  or  to  give  special  interpretations  to  the  principles 
ordinarily  governing  the  recognition  of  belligerency  is  much 
less,  because,  when  a  status  of  insurgency  is  admitted,  many 
of  the  domestic  reasons  for  such  recognition  may  disappear, 
and  the  formal  recognition  need  only  take  place  when  the 
international  relations  warrant  such  action.  The  admission  of 
msurgency  is  the  admission  of  an  easily  discovered  material 
fact.  The  recognition  of  belligerency  involves,  not  only  a 
recognition  of  a  fact,  but  also  questions  of  policy  touching 
many  other  considerations  than  those  consequent  upon  the 
simple  existence  of  hostilities.^* 

LOSS    OR    MODIFICATION    OF    STATUS. 

19.  Tlie  loss  or  modification  of  tlie  international  status  of  a 
political  unity  may  affect  treaty  relations,  public  ob- 
ligations, public  property,  and  private  property  and 
relations. 

Grotius  maintains  that  the  political  unity  may  be  destroyed 
through  the  disappearance  of  the  body  politic,  as  by  destruc- 
tion of  the  people  by  flood  or  famine.  The  unity  may  disap- 
pear through  the  destruction  of  the  bond  of  union  which  holds 
the  people  together,  as  in  civil  war.  The  international  per- 
sonality may  disappear  when  one  political  unity  is  merged  in 
or  subordinated  to  another  political  unity,  as  when  one  state 
is  conquered  by  another.^ ^  The  destruction  of  the  people  of  a 
state  by  pestilence,  by  flood,  or  other  similar  disaster,  is  now 
hardly  conceivable.  The  dissolution  of  political  bonds  through 
revolt  or  otherwise  has  frequently  occurred.    The  loss  of  inter- 

3  4  Wilson,  Insurgency,  Lectures  U.  S.  Naval  War  College,  11)00; 
International  Law  Situations,  1902,  pp.  57-83;  Id.  1904,  pp.  2(>-62; 
Insurgency  and  International  Maritime  Law,  1  American  Jour.  In- 
ternational Law,  p.  4G. 

35  De  Jure  Belli  ac  Pacis,- lib.  II,  cap.  IX,  4-6. 
Wils.Int.L.- — 4 


50  PERSONS  IN   INTERNATIONAL   LAW.  (Cb.  1 

national  status  by  one  unity  through  some  form  of  merging 
in  another  poHtical  unity  has  been  particularly  common  in  in- 
ternational relations. 

The  modification  of  international  status  through  the  loss  or 
giving  up  of  a  part  of  the  independence  possessed  by  a  political 
unity  may  make  it  impossible  for  that  unity  to  perform  obli- 
gations which  rested  upon  it  previous  to  this  modification  of 
its  status. 

If  the  absolute  destruction  of  the  people  of  a  state  should 
occur,  obligations  resting  upon  them  as  a  body  politic  would  of 
necessity  fall,  though  obligations  resting  on  the  territorial 
basis  of  the  state  might  be  sustained. 

Similarly  as  a  general  principle  it  is  maintained  that,  so  far 
as  treaty  relations  and  public  obligations  are  not  in  the  main 
political,  but  territorial,  they  remain  binding  upon  the  local 
territory,  even  though  the  international  person  formerly  hav- 
ing jurisdiction  over  the  territory  has  lost  status  in  the  family 
of  nations.  The  general  principle  is  "res  transit  cum  suo 
onere."  This  succession  is  generally  restricted  to  those  obli- 
gations which  are  of  the  nature  of  property  rights^*'  and  to 
those  which  relate  to  the  territory  as  public  domain.^^ 

36  English  decision,  United  States  v.  McRae.  8  L.  R.  Eq.  72,  quoted 
in  United  States  v.  Suiitli.  l  Huglaes,  347,  Fed.  Cas.  No.  16,335. 

"I  apprelieud  it  to  be  clear,  public,  universal  law  that  any  govern- 
ment which  de  facto  succeeds  to  any  other  government,  whether  by 
revolution  or  restoration,  conquest  or  reconquest,  succeeds  to  all  the 
public  property,  to  everything  in  the  nature  of  public  property,  and 
to  all  rights  in  respect  to  the  public  property  of  the  displaced  pow- 
er, whatever  may  be  the  nature  or  origin  of  the  title  of  such  dis- 
placed power.  Any  such  public  money  in  any  treasury,  any  such 
I)ublic  property  found  in  any  warehouse,  fort,  or  arsenal,  w'ould, 
on  the  success  of  the  new  or  restored  power,  vest  ipso  facto  in  such 
power,  and  it  would  have  the  right  to  call  to  account  any  fiscal  or 
other  agent  or  any  debtor  or  accountant  to  or  of  the  persons  who  had 
exercised  and  had  ceased  to  exercise  the  authority  of  a  government, 
the  agent,  debtor,  or  accountant  having  been  the  agent,  debtor,  or 
accountant  of  such  persons  in  their  character  or  pretended  character 
of  a  government.     But  this  is  the  right  of  succession,  is  the  right 

3  7  Claim  of  the  Manila  Railway  Company,  Magoon,  Law  of  Civil 
Government  under  Military  Occupation  (2d  lid.)  p.  177,  ff;  23  Ops. 
Attys.  Gen.  181,  451 ;  1  Moore,  §§  90-98. 


§  19)  LOSS   OR  MODIFICATION    OF    STATUS.  51 

When  the  whole  or  a  portion  of  one  state  becomes  a  part  of 
another  state  as  a  result  of  conquest,  cession,  or  otherwise, 
local  obligations  pass  to  the  acquiring  state.  Contracts  re- 
lating to  the  public  interests  of  the  acquired  territory,  entered 
into  by  the  state  formerly  having  sovereignty,  are  usually 
acknowledged  by  the  new  sovereign.  Provisions  to  this  effect 
occur  in  many  treaties,  and  when  not  specifically  mentioned 
such  obligations  are  usually  assumed,  on  proof  that  the  claim 
is  just  and  equitable. 

Similarly,  concessions  relating  to  the  acquired  territory  are 
usually  continued.^* 


of  represeutation,  is  a  right,  not  paramount,  but  derived,  I  wil] 
not  say  under,  but  through,  the  suppressed  and  displaced  authority, 
and  can  only  be  enforced  in  the  same  way,  and  to  the  same  extent, 
and  subject  to  the  same  correlative  obligations  and  rights,  as  if  that 
authority  had  not  been  suppressed  and  displaced,  and  was  itself 
seeking  to  enforce  it."    Scott's  Cases,  89. 

38  "9.  It  is  clear  that  a  state  which  has  annexed  another  is  not 
legally  bound  by  any  contracts  made  by  the  state  which  has  ceased 
to  exist,  and  that  no  court  of  law  has  jurisdiction  to  enforce  such 
contracts  if  the  annexing  state  refuse  to  recognize  them.  But  the 
modern  usage  of  nations  has  tended  in  the  direction  of  the  acknowl- 
edgment of  such  contracts.  After  annexation,  it  has  been  said,  the 
people  change  their  allegiance;  but  their  relations  to  each  other 
and  their  rights  of  property  remain  undisturbed,  and  property  in- 
cludes those  rights  which  lie  in  contract.  'La  conquete  change  les 
droits  politiques  des  habitants  du  territoire,  et  transfere  au  nouveau 
souverain  la  propriete  du  domaine  public  de  son  cedant.  II  n'en 
est  pas  de  mgme  de  la  propriete  priv6  qui  demeure  incommutable 
entres  les  mains  de  ses  legitimes  possesseurs.'  Concessions  of  the 
nature  of  those  which  were  the  subject  of  our  inquiry  presented 
examples  of  mixed  public  and  private  rights.  They  probably  continue 
to  exist  after  annexation  until  abrogated  by  the  annexing  state, 
and,  as  matter  of  practice  in  modern  times,  where  treaties  have 
been  made  on  the  cession  of  territory,  have  been  often  maintained 
by  agreement.  In  considering  what  the  attitude  of  a  conqueror 
should  be  towards  such  concessions,  we  are  unable  to  perceive  any 
sound  distinction  between  a  case  where  a  state  acquires  part  of  an- 
other by  cession  and  a  case  where  it  acquires  the  whole  by  annexa- 
tion. The  opinion  that  in  general  private  rights  should  be  respected 
by  the  conqueror,  though  illustrated  and  supported  by  jurists  by 
analogies  drawn  from  the  Roman  law  of  inheritance,  is  based  on  the 
principle,  which  is  one  of  ethics  rather  than  of  law,  that  the  area 
of  war  and  of  suffering  should  be,  so  far  as  possible,  narrowly  con- 


52  PERSONS  IN  INTERNATIONAL   LAW.  (Ch.  1 

The  protection  of  private  rights  is  held  to  be  obligatory  up- 
on the  new  sovereign  as  on  the  old.  Sovereignty  and  political 
allegiance  are  transferred,  but  private  rights  and  obligations 
are  only  so  far  modified  as  may  be  necessary  for  the  exercise 
of  jurisdiction  by  the  state  which  has  acquired  the  territory. 
"The  people  change  their  allegiance;  their  relation  to  their 
ancient  sovereign  is  dissolved;  but  their  relations  to  each  oth- 
er, and  their  rights  of  property,  remain  undisturbed."  ^* 

fined,  and  that  uoncombatants  should  not,  where  it  is  avoidable,  be 
disturbed  in  their  business ;  and  this  principle  is  at  least  as  applica- 
ble to  a  case  where  all  as  where  some  of  the  provinces  of  a  state 
are  annexed. 

"10.  Though  we  doubt  whether  the  duties  of  an  annexing  state 
towards  those  claiming  under  concession  or  contracts  granted  or 
made  by  the  annexed  state  have  been  defined  with  such  precision 
in  authoritative  statement,  or  acted  upon  with  such  uniformity  in 
civilized  practice  as  to  warrant  their  being  termed  rules  of  inter- 
national law,  we  are  convinced  that  the  best  modern  opinion  favors 
the  view  that,  as  a  general  rule,  the  obligations  of  the  annexed 
.state  towards  private  persons  should  be  respected.  Manifestly  the 
general  rule  must  be  subject  to  qualification ;  e.  g.,  an  insolvent  state 
could  not  by  aggression,  which  practically  left  to  a  solvent  state 
no  other  course  but  to  annex  it,  convert  its  worthless  into  valuable 
obligations.  Again,  an  annexing  state  would  be  justified  in  refusing 
to  recognize  obligations  incurred  by  the  annexed  state  for  the  im- 
mediate purposes  of  war  against  itself ;  and  probably  no  state  would 
acknowledge  private  rights,  the  existence  of  which,  caused,  or  con- 
tributed to  cause,  the  war  which  resulted  in  annexation."  Report 
of  the  Transvaal  Concessions  Commission,  British  State  Papers, 
South  Africa,  1901,  Cd.  G23,  p.  7. 

Maintaining  the  contrary  to  this  last  clause,  Oppenheim  says: 
"A  state  which  has  subjugated  another  would  be  obliged  to  take 
over  even  such  obligations  as  have  been  incurred  by  the  annexed 
state  for  the  immediate  purpose  of  the  war  which  led  to  its  sub- 
jugation."    1  International  Law,  122. 

3  9  United  States  v.  Percheman,  7  Pet.  51,  8  L.  Ed.  604. 


Part  11 
GENERAL  RIGHTS  AND  OBLIGATIONS 


WiLS.lNT.Lu  (53)* 


5  21)  EXISTENCK,  INDEPENDENCE  AND   EQUALITY.  55 

CHAPTER  II. 
EXISTENCE,  INDEPENDENCE  AND  EQUALITY. 

20.  Right  of  Existence. 

21.  Right  of  Self-Preservation. 

22.  Right  of   Independence. 

23.  Duty  of  Nonintervention. 

24.  Policy  of  Intervention. 

25.  Right  of  Equality. 

BIGHT    OF   EXISTENCE. 

20.  In  international  law,  the  fundamental  right  of  a  state  is 

the   right   of  existence. 

The  right  of  a  state  to  exist  as  a  member  of  the  family  of 
nations  is  based  for  those  states,  members  of  the  original 
family  of  nations,  upon  historical  grounds,  and  for  other 
states  upon  international  recognition  or  agreement.  A  de 
facto  state,  in  the  sense  of  public  law,  may  exist  prior  to  this 
acquisition  of  international  status ;  but  existence  as  a  member 
of  the  international  family  is  the  fundamental  right,  from 
which  the  other  rights  recognized  in  international  law  are  de- 
rived. The  recognition  of  the  right  to  exist  would  imply  the 
possession  of  the  power  to  exercise  those  rights  generally  ex- 
ercised by  the  states  constituting  the  family  of  nations.  These 
rights  have  been  variously  classified,  and  with  the  rights  cor- 
responding duties  and  obligations  have  been  grouped.^ 

RIGHT  OF  SELF-PRESERVATIOX. 

21.  The  right  of  self-preservation  is  an  absolute  right,  Based 

upon  the  right  of  existence,  and  is  limited  in  its  ex- 
ercise by  the   rights   of  other  states. 

A  state  may  take  measures  necessary  to  maintain  the  con- 
ditions essential  to  its  being,  as  in  the  protection  of  land  and 
people  and  the  development  of  national  life  and  resources. 

1  Pradier-Fodere,  §§  164-210. 


56  EXISTENCE,  INDEPENDENCE   AND   EQUALITY.  (Ch.  2 

Under  the  right  of  self-preservation  states  have  taken  action 
to  increase  the  national  dominion,  population,  and  resources ; 
to  strengthen  the  means  of  defense  and  offense ;  to  regulate 
commerce  and  other  intercourse  with  foreign  states ;  and,  in 
general,  to  maintain  the  national  security  and  well-being. 

Of  action  necessary  for  national  development  or  security  the 
state  is  itself  the  judge,  and  for  its  action  it  must  be  respon- 
sible. The  range  of  action  is  conditioned  by  the  right  of  ex- 
istence as  possessed  by  other  states,  as  in  time  of  war  the 
rights  of  the  belligerents  are  conditioned  by  the  rights  of 
neutrals.  Authorities  do  not  agree  as  to  what  action  may  be 
taken  under  stress  of  necessity  on  the  ground  of  self-preserva- 
tion. As  each  state  is  the  judge  of  what  endangers  its  own  ex- 
istence and  what  measures  may  be  necessary  for  its  preserva- 
tion, the  action  to  be  taken  under  given  conditions  is  deter- 
mmed  by  policy,  rather  than  by  principles  of  law,  and  such 
action  is  usually  tempered  by  the  fear  of  war  or  other  meas- 
ures of  -redress. 

RIGHT    OF   INDEPENDENCE. 

22.  Tlie  right  of  independence  or  freedom  from  external 
political  control  is  derived  from  tlie  natnre  of  the  state 
as  sovereign. 

The  right  of  independence  is  implied  in  the  recognition  of 
existence  of  a  state.  Upon  this  right  of  independence  of  a 
state  are  based  the  exercise  of  internal  political  supremacy, 
the  control  over  territory  and  population,  and  the  regulation 
of  relations  with  other  states.^  The  exercise  of  internal  polit- 
ical supremacy  carries  the  right  to  adopt  a  constitution  and 
to  establish  the  government.  Action  in  accord  with  the  laws, 
made  under  the  constitution,  may  give  rise  to  international 
complications,  as  when  citizens  or  property  of  one  state  are 

2  "E\'ery  sovereign  state  is  bound  to  respect  the  independence  of 
every  otlier  sovereign  state,  and  ttie  courts  of  one  country  will 
not  sit  in  judgment  on  the  acts  of  the  government  of  another  done 
within  its  own  territory.  Redress  of  grievances  by  reason  of  such 
acts  must  be  obtained  through  the  means  open  to  be  availed  of  by 
sovereign  powers  as  between  themselves."  Underbill  v.  Hernandez, 
16S  U.  S.  250,  18  Sup.  Ct.  83,  42  L.  Ed.  456. 


§  23)  DUTY    OF   NONINTERVENTION.  57 

within  another.  Many  of  these  questions  belong  to  the  field 
of  conflict  of  laws,  rather  than  to  public  international  law. 
The  exercise  of  the  right  of  independence  in  making  laws  in 
regard  to  commercial  relations  was  one  of  the  earliest  matters 
giving  rise  to  conflicts  which  made  international  agreements 
desirable  and  necessary.  The  field  of  uniformity  in  the  do- 
mestic laws  upon  matters  of  common  interest  has  rapidly 
broadened.  Very  many  of  the  important  questions  upon  which 
uniformity  in  legislation  in  different  states  is  desirable  have 
been  discussed  by  official  international  conferences.  Such  con- 
ferences averaged  more  than  two  for  each  year  during  the 
last  quarter  of  the  nineteenth  century,  and  have  been  even 
more  frequent  during  the  twentieth  century.  The  results  of 
the  conferences  have  tended  to  enlarge  the  range  of  possible 
independent  action,  while  removing  to  a  considerable  degree 
the  probability  of  arbitrary  action  on  the  part  of  the  states 
participating  in  the  conferences.  Thus  there  has  been  an  at- 
tempt to  secure  the  advantages  of  internal  sovereignty  without 
the  possible  disagreements  and  friction  naturally  consequent 
upon  the  closer  relation  between  different  states  and  the  citi- 
zens of  different  states. 

The  principle  of  independence  is  in  no  wise  denied  in  the 
voluntary  engagements  to  which  states  may  become  parties. 
Treaties  and  conventions  are  made  with  a  view  to  benefit  all 
who  ratify  them,  and  such  agreements  do  not  create  a  power 
superior  to  the  contracting  parties. 

DUTY   OF   NONINTERVENTION. 

23.  Correlative  -roitli  the  right  of  independence  is  the  duty  of 
nonintervention  by  one  state  in  affairs  wrhich  solely 
concern  another  state  or  other  states. 

While  a  state  is  under  obligation  not  to  intervene  in  the  af- 
fairs of  other  states,  yet  intervention  is  sometimes  regarded  as 
justifiable  on  the  ground  of  the  fundamental  right  of  self- 
preservation  of  the  state,  for  the  maintenance  of  conditions 
necessary  for  the  existence  of  international  relations,^  for  the 

3  Intervention  took  place  in  China  in  1900  in  consequence  of  the 
Boxer  uprising,  which  shut  up  in  Pelvin  diplomatic  representatives 


58  EXISTENCE,  INDEPENDENCE   AND   EQUALITY.  (Ch.  2 

fulfillment  of  a  treaty  of  guarantee,  on  invitation  of  a  party  to 
a  civil  war,  under  sanction  of  a  body  of  states,  as  a  matter  of 
national  policy,  or  upon  grounds  clearly  outside  the  field  of 
international  law. 

In  theory,  intervention  for  self-preservation  would  involve 
the  intervening  state  in  no  more  serious  consequences  than 
would  follow  nonintervention.  The  existence  of  the  state  is 
threatened  in  either  case.  The  determination  of  a  line  of  ac- 
tion, therefore,  becomes  a  question  of  policy.    The  action  will 

and  other  foreii^ners.  The  several  powers  sent  armed  forces  to  their 
rescue.  The  United  States  defined  its  pm poses  and  policy  in  the 
following  circular  note  to  the  co-operating  powers: 

"Department  of  State,  Washington,  July  3,  1900. 

"In  this  critical  posture  of  affairs  in  China,  it  is  deemed  appro- 
priate to  define  the  attitude  of  the  United  States  as  far  as  present 
circumstances  permit  this  to  be  done.  We  adhere  to  the  policy  ini- 
tiated by  us  in  1857  of  peace  with  the  Chinese  nation,  of  furtherance 
of  lawful  commerce,  and  of  protection  of  lives  and  property  of  our 
citizens  by  all  means  guaranteed  under  extraterritorial  treaty  rights 
and  by  the  law  of  nations.  If  wrong  be  done  to  our  citizens,  we  prO' 
pose  to  hold  the  responsible  authors  to  the  uttermost  accountability. 
We  regard  the  condition  at  Pekin  as  one  of  virtual  anarchy,  where- 
by power  and  responsibility  are  practically  devolved  upon  the  local 
provincial  authorities.  So  long  as  they  are  not  in  overt  collusion 
with  rebellion,  and  use  their  power  to  protect  foreign  life  and  prop- 
erty, we  regard  them  as  representing  the  Chinese  people,  with  whom 
we  seek  to  remain  in  peace  and  friendship.  The  purpose  of  the 
President  is,  as  it  has  been  heretofore,  to  act  concurrently  with  the 
other  powers,  first,  in  opening  up  communication  with  Pekin  and 
rescuing  the  American  ofl^cials,  missionaries,  and  other  Americans 
who  are  in  danger;  secondly,  in  affording  all  possible  protection  ev- 
erywhere in  China  to  American  life  and  property;  thirdly,  in  guard- 
ing and  protecting  all  legitimate  American  interests ;  and,  fourthly, 
in  aiding  to  prevent  a  spread  of  the  disorders  to  the  other  provinces 
of  the  Empire  and  a  recurrence  of  such  disasters.  It  is,  of  course, 
too  early  to  forecast  the  means  of  attaining  this  last  result ;  but 
the  policy  of  the  government  of  the  United  States  is  to  seek  a  solu- 
tion which  may  bring  about  permanent  safety  and  peace  to  China, 
preserve  Chinese  territorial  and  administrative  entity,  protect  all 
rights  guaranteed  to  friendly  powers  by  treaty  and  international 
law,  and  safeguard  for  the  world  the  principle  of  equal  and  impartial 
trade  with  all  parts  of  the  Chinese  Empire. 

"You  will  communicate  the  purport  of  this  instruction  to  the  min- 
ister for  foreign  affairs.  Hay." 
Foreign  Relations  U.  S.,  1901,  Appendix,  p.  12. 


§  23)  DUTY    OF    NONINTERVENTION.  59 

naturally  vary  according-  to  the  strength  of  the  state  and  ac- 
cording to  the  degree  to  which  the  well-being  of  the  state  is 
endangered.  It  may  be  by  force  of  arms,  by  diplomatic  nego- 
tiation, or  by  other  means. 

"Intervention  takes  place  when  a  state  interferes  in  the  re- 
lations of  two  other  states  without  the  consent  of  both  or 
either  of  them,  or  when  it  interferes  in  the  domestic  affairs  of 
another  state,  irrespectively  of  the  will  of  the  latter,  for  the 
purpose  of  either  maintaining  or  altering  the  actual  condition 
of  things  within  it.  Prima  facie  intervention  is  a  hostile  act, 
because  it  constitutes  an  attack  upon  the  independence  of  the 
state  subjected  to  it.  Nevertheless  its  position  in  law  is  some- 
what equivocal.  Regarded  from  the  point  of  view  of  the  state 
intruded  upon,  it  must  always  remain  an  act  which,  if  not 
consented  to,  is  an  act  of  war.  But,  from  the  point  of  view 
of  the  intervening  power,  it  is  not  a  means  of  obtaining  re- 
dress for  a  wrong  done,  but  a  measure  of  prevention  or  of  pol- 
ice, undertaken  sometimes  for  the  express  purpose  of  avoiding 
war.  *  *  *  The  right  of  independence  is  so  fundamental 
a  part  of  international  law,  and  respect  for  it  is  so  essential 
to  the  existence  of  legal  restraint,  that  any  action  tending  to 
place  it  in  a  subordinate  position  must  be  looked  upon  with 
disfavor,  and  any  general  grounds  of  intervention  pretending 
to  be  sufficient,  no  less  than  their  application  in  particular 
cases,  may  properly  be  judged  with  an  adverse  bias."  * 

Intervention  has  often  been  justified  on  the  ground  that 
citizens  of  one  state  have  been  denied  ordinary  justice  while 
in  another  state.  While  it  may  be  admitted  in  principle  that 
states  must  respect  ordinary  justice  in  their  international  deal- 
ings, in  practice  it  has  been  found  difficult  to  reconcile  the 
ideas  of  justice  as  held  in  different  states.  Unreasonable  de- 
lays in  trial,  discrimination  against  the  foreigner  on  trial,  or 
refusal  of  rights  usually  granted  to  accused  in  civilized  states, 
have  been  held  as  grounds  justifying  intervention,^  and  upon 


4  Hall,  Int.  Law  (Sth  Ed.)  pp.  284,  285. 

6  Secretary  Bayard  maintained,  in  a  commnnication  to  the  United 
States  minister  to  Mexico  in  18S6,  that: 

"By  the  law  of  nations  no  punishment  can  be  Inflicted  by  a  sover- 


60  EXISTENCE,  INDEPENDENCE   AND    EQUALITY.  (Ch.  2 

such  grounds  diplomatic  and  other  intervention  has  taken 
place.  Demands  have  also  often  been  made  by  a  citizen  that 
his  state  interfere  in  aiding  him  in  collecting  a  debt  due  from 
a  foreign  state.  At  the  Hague  Conference  of  1907  an  agree- 
ment was  reached  that  states  would  not  engage  in  hostilities 
for  this  reason.  This  is  a  modification  of  the  "Drago  Doc- 
trine." It  has  not  been  the  practice  of  the  United  States  to 
interfere  in  such  cases  other  than  by  use  of  its  good  offices.® 
Other  states  have  exercised  a  wide  discretion  in  such  cases, 
employing  at  times  various  degrees  of  constraint,  even  resort- 
ing to  war.' 


eign  on  citizens  of  other  countries,  unless  in  conformity  with  those 
sanctions  of  justice  which  all  civilized  nations  hold  in  common. 

"Among  these  sanctions  are  the  right  of  having  the  facts  on  which 
the  charge  of  guilt  was  made  examined  by  an  impartial  court,  the 
explanation  to  the  accused  of  these  facts,  the  opportunity  granted 
to  him  of  counsel,  such  delay  as  is  necessary  to  prepare  his  case, 
permission  in  all  cases  not  capital  to  go  at  large  on  bail  till  trial, 
the  due  production  under  oath  of  all  evidence  prejudicing  the  ac- 
cused, giving  him  the  right  to  cross-examination,  the  right  to  pro- 
duce his  own  evidence  in  exciilpation,  release  even  from  temporary 
imprisonment  in  all  cases  where  the  charge  is  simply  one  of  threat- 
ened breacli  of  the  peace,  and  where  due  security  to  keep  the  peace 
is  tendered."  Foreign    Relations    U.    S.,    1886,    p.    701. 

e  For  review  of  cases  involving  United  States  citizens,  see  6  Moore, 
Int.  Law  Dig.   §  912  et  seq. 

7  A  letter  bearing  date  of  December  29,  1902,  from  Senor  Luis  M. 
Drago,  Argentine  Minister  of  Foreign  R.elations,  was  transmitted  ta 
the  State  Department  of  the  United  States,  contains  what  has  been 
called  the  "Calvo  Doctrine,"  or  the  "Drago  Doctrine,"  in  regard  to 
the  collection  of  public  debts:  "The  only  principle  which  the  Ar- 
gentine Republic  maintains,  and  which  it  would,  with  great  satisfac- 
tion, see  adopted,  in  view  of  the  events  in  Venezuela,  by  a  nation 
that  enjoys  such  great  authority  and  prestige  as  does  the  United 
States,  is  the  principle,  already  accepted,  that  there  can  be  no  ter- 
ritorial expansion  in  America  on  the  part  of  Europe,  nor  any  oppres- 
sion of  the  peoples  of  this  continent,  because  an  unfortunate  financial 
situation  may  compel  some  one  of  them  to  postpone  the  fulfillment 
of  its  promises.  In  a  word,  the  principle  which  she  would  like  to 
see  recognized  is  that  the  public  debt  cannot  occasion  armed  inter- 
vention, nor  even  the  actual  occupation  of  the  territory  of  American 
nations,  by  a  European  power."     Foreign  Relations  U.  S.,  1903,  p.  4. 

A  modified  form  of  this  "Drago  Doctrine"  was  approved  by  the 
Second   Hague   Conference  in   1907   by  thirty-nine  votes,   with   five 


§  23)  DUTY   OF    NONINTERVENTION.  61 

The  question  as  to  intervention  under  treaty  of  guaranty  has 
been  much  disputed.  Treaties  containing  guaranties  vary  in 
character,  and  some  could  doubtless  be  supported,  while  the 
attempt  to  carry  out  others  would  involve  unjustifiable  inter- 
vention. Such  treaties  must  usually  receive  interpretation  ac- 
cording to  the  principle  "rebus  sic  stantibus,"  and  the  observ- 
ance of  their  provisions  frequently  becomes  merely  a  question 
of  policy,  and  may  need  other  justification  than  the  written 
agreement.  Intervention  under  a  treaty  of  guaranty  which 
provides  for  the  maintenance  of  a  certain  form  of  government 
or  ruling  family  is  regarded  by  some  as  unjustifiable  ^  and 
by  others  as  justifiable.®    Provisions  of  guaranty  may  limit  the 


abstentions.  T^'elve  Latin-American  states  made  reservations.  Ar- 
ticle I  of  the  Convention  Respecting  ttie  Limitation  of  the  Employ- 
ment of  Force  for  the  Recovery  of  Contract  Debts  contains  the 
regulation: 

"The  contracting  powers  agree  not  to  have  recourse  to  armed  force 
for  the  recovery  of  contract  debts  claimed  from  the  government  of 
one  country  by  the  government  of  another  country  as  being  due  to 
its  nationals. 

"This  undertaking  is,  however,  not  applicable  when  the  debtor 
state  refuses  or  neglects  to  reply  to  an  offer  of  arbitration,  or,  after 
accepting  the  offer,  prevents  any  compromise  from  being  agreed  on. 
or,  after  the  arbitration,  fails  to  submit  to  the  award." 

Some  reservations  were  entered  because  the  use  of  force  was  pro- 
hibited only  till  efforts  at  arbitration  were  refused  or  failed. 

Cobro  Coercitivo  de  Deudas  Publicas,  Drago,  1906. 

On  December  7,  1902.  Germany  and  Great  Britain  issued  notes 
identical  in  form  in  regard  to  the  contractual  claims  of  citizens  of  the 
respective  states  against  the  Venezuelan  government.  This  note  de- 
clares that,  "if  the  demands  of  the  two  governments  are  not  satisfied, 
joint  military  action  will  immediately  be  undertaken."  Foreign  Re- 
lations U.  S.,  1903,  p.  419.  It  was  proposed  that  coercion  should  take 
the  form  of  blockade,  without  a  declaration  of  war.  The  United 
States  did  "not  acquiesce  in  any  extension  of  the  doctrine  of  pacific 
blockade,"  and  a  regular  blockade  was  declared  on  December  20, 
1902,  in  which  Italy  also  joined..  Foreign  Relations  U.  S..  1903,  p. 
417  et  seq.  After  the  blockade  was  raised  the  questions  in  regard 
to  claims  were  referred  to  arbitration.  See  Ralston's  Report,  Ven- 
ezuelan Arbitration  of  1903 :  Report  of  William  L.  Penfield,  The 
Venezuelan  Arbitration  before  the  Hague  Tribunal,  1903. 

8  As  by  Twiss,  Halleck.  and  Hall. 

•  As  by  De  Jlartens,  Heffter,  and  Oppenheim. 


62  EXISTENCE,  INDEPENDENCE   AND   EQUALITY.  (Ch.  2 

exercise  of  full  sovereignty,^**  or  may  make  secure  the  exist- 
ence of  a  state  having  a  qualified  status,  as  in  the  case  of  cer- 
tain neutralized  states. 

Intervention  on  invitation  of  a  party  to  a  civil  war  is  not 
now  regarded  as  justifiable.  Of  course,  civil  war  may  give 
rise  to  conditions  which  may  lead  a  state  to  intervene  on  other 
grounds,  as  in  case  of  the  intervention  of  the  United  States  in 
Cuba  in  1898.^^    It  was  regarded  by  some  writers  as  justifiable 

10  The  Republic  of  New  Grauada  (Colombia)  and  the  United  States, 
by  the  treaty  of  December  12,  1846,  article  35,  make  mutual  guar- 
anties, and  the  United  States  prior  to  1903  frequently  intervened 
under  its  provisions  by  landing  armed  forces  on  the  Isthmus  of 
Panama.  "The  government  of  New  Granada  guarantees  to  the  gov- 
ernment of  the  United  States,  that  the  right  of  way  or  transit  across 
the  Isthmus  of  Panama  upon  any  modes  of  communication  that  now 
exist,  or  that  may  be  hereafter  constructed,  shall  be  open  and  free 
to  the  government  and  citizens  of  the  United  States,  and  for  the 
transportation  of  any  articles  of  produce,  manufactures,  or  merchan- 
dise, of  lawful  commerce,  belonging  to  the  citizens  of  the  United 
States;  that  no  other  tolls  or  charges  shall  be  levied  or  collected 
upon  the  citizens  of  the  United  States,  or  their  said  merchandise, 
thus  passing  over  any  road  or  canal  that  may  be  made  by  the 
government  of  New  Granada,  or  by  the  authority  of  the  same,  than 
is  under  like  circumstances  levied  upon  and  collected  from  the 
Granadian  citizens;  that  any  lawful  produce,  manufactures,  or  mer- 
chandise belonging  to  citizens  of  the  United  States,  thus  passing 
from  one  sea  to  the  other,  in  either  direction,  for  the  purpose  of 
exportation  to  any  other  foreign  country,  shall  not  be  liable  to  any 
import  duties  whatever,  or,  having  paid  such  duties,  they  shall  be 
entitled  to  drawback,  upon  their  exportation ;  nor  shall  the  citizens 
of  the  United  States  be  liable  to  any  duties,  tolls,  or  charges  of  any 
kind  to  which  native  citizens  are  not  subjected  for  thus  passing  the 
said  Isthmus.  And,  in  order  to  secure  to  themselves  the  tranquil 
and  constant  enjoyment  of  these  advantages,  and  as  an  especial 
compensation  for  the  said  advantages  and  for  the  favors  they  have 
acquired  by  the  fourth,  fifth  and  sixth  articles  of  this  treaty,  the 
United  States  guarantee  positively  and  efficaciously  to  New  Granada, 
by  the  present  stipulation,  the  perfect  neutrality  of  the  before-men- 
tioned Isthmus,  with  the  view  that  the  free  transit  from  the  one  to 
the  other  sea  may  not  be  interrupted  or  embarrassed  in  any  future 
time  while  this  treaty  exists ;  and,  in  consequence,  the  United  States 
also  guarantee,  in  the  same  manner,  the  rights  of  sovereignty  and 
property  which  New  Granada  has  and  possesses  over  the  said  ter- 
ritory." 

]  1  The  President  of  the  United  States  gives  "the  interests  of  hu- 


§  23)  DUTY   OF    NONINTERVENTION.  63 

to  intervene  on  invitation  of  the  parent  state,  if  not  on  invi- 
tation of  the  rebelHng  party.  Even  such  intervention  would 
imply  a  doubt  as  to  the  ability  of  the  party  in  power  to  main- 
tain itself  as  the  de  facto  government,  and  international  law 
does  not  sanction  the  assumption  by  a  foreign  state  of  the 
right  to  judge  as  to  the  merits  of  a  conflict  in  another  state. 
Intervention  in  behalf  of  the  rebelling  party  would  violate  the 
independence  of  the  established  state. 

Intervention  under  sanction  of  a  body  of  states,  or  through 
joint  or  concerted  action,  has  been  common.  It  is  reasonable 
to  conclude  that  such  intervention  would  be  less  liable  to  be  on 
narrow  or  selfish  grounds,  because  based  on  the  approval  of 
several  states.  Such  intervention  was  common  in  Europe  for 
the  preservation  of  the  so-called  balance  of  power.  This  has 
been  the  argument  for  the  many  interventions  in  the  affairs  of 
Southeastern  Europe.  Intervention  by  a  body  of  states  is 
usually  professedly  for  the  highest  well-being  of  all  parties 
concerned,  particularly  of  the  state  subject  to  the  action.  The 
final  results  often  give  evidence  that  each  state  expects  its  own 
policy  will  in  some  way  be  advanced,  frequently  at  the  expense 
of  the  state  subject  to  the  intervention. ^- 

Intervention  on  grounds  outside  the  field  of  international 

manity"  as  one  of  the  grounds  justifying  intervention  in  Cuba  in 
1898:  "Tlie  grounds  justifying  that  step  were  the  interests  of  hu- 
manity, the  duty  to  protect  the  life  and  property  of  our  citizens  in 
Cuba,  the  right  to  checli  injury  to  our  commerce  and  people  through 
the  devastation  of  the  island,  and,  most  important,  the  need  of  re- 
moving at  once  and  forever  the  constant  menace  and  the  burdens  en- 
tailed upon  our  government  by  the  uncertainties  and  perils  of  the 
situation  caused  by  the  unendurable  disturbance  in  Cuba."  Message 
of  President  McKinley,  December  5,  1898. 

12  At  the  close  of  the  Chiuo-Japanese  vs^ar  in  1895,  Japan  obtained 
the  concession  of  the  Diao-tung  peninsula,  with  Port  Arthur.  Eight 
days  after  the  treaty  of  cession  was  signed,  Russia,  supported  by 
France  and  Germany,  presented  the  following  note  to  Japan: 

"The  Imperial  Russian  Government,  having  examined  the  terms 
of  peace  demanded  of  China  by  Japan,  consider  the  contemplated 
possession  of  the  Liao-tung  peninsula  by  Japan  will  not  only  consti- 
tute a  constant  menace  to  the  capital  of  China,  but  will  also  render 
the  independence  of  Korea  illusory,  and  thus  jeopardize  the  perma- 
nent peace  of  the  Far  East.  Accordingly,  the  Imperial  Government, 
in  a  spirit  of  cordial  friendship  for  Japan,  hereby  counsel  the  govern- 


64  EXIvSTEXCE,  INDEPENDENCE   AND   EQUALITY.  (Ch.  2 

law  must  look  outside  of  international  law  for  sanction ;  e.  g., 
intervention  on  grounds  of  humanity  or  religion. 

Intervention  on  the  grounds  of  humanity  has  looked  to  the 
general  principles  of  human  association  for  its  justification. 
It  is  maintained  that,  as  a  single  state  can  resort  to  interven- 
tion to  preserve  itself,  so  society  can  take  action  against  any 
state  within  it  for  the  preservation  of  itself  or  for  its  well- 
being.  While  such  intervention  might  be  viewed  favorably,  if 
sanctioned  by  society  in  general  outside  the  offending  state, 
intervention  on  this  ground  may  be  open  to  grave  abuse,  if 
taken  by  a  single  state  without  general  sanction.  The  claim 
that  intervention  on  the  ground  of  preserving  the  public  health, 
or  preventing  the  spread  of  dangerous  diseases,  and  the  like,  is 
intervention  on  the  ground  of  humanity,  seems  to  be  an  unnec- 
essary inference,  as  such  intervention  would  be  justified  on  the 
ground  of  self-preservation.^^ 

The  protection  of  religion  has  been  named  as  the  reason 
justifying  many  interventions.  This  has  been  particularly  true 
in  affairs  in  Southeastern  Europe.  Treaties  sometimes  provide 
for  diplomatic  action,  or  even  intervention  by  force,  for  the 
protection  of  religion.^* 

inent  of  the  Emperor  of  .Japan  to  renounce  the  definitive  possession 
of  the  Liao-tung  peninsula." 

Japan,  not  desiring  to  talce  the  risli  of  defying  the  three  powers, 
issued  a  rescript  in  which  she  "yielded  to  the  dictates  of  magnanim- 
ity, and  accepted  the  advice  of  the  three  powers." 

On  April  5,  1S98,  a  proclamation  was  issued,  stating  that  Russia 
had  acquired  a  lease  of  Liao-tung  region.  Foreign  Relations  U.  S., 
1898,  p.  183. 

13  Pradier-Foderg,  §  435. 

14  Treaty  of  Berlin  of  1878  provides,  that: 

"The  right  of  ofiicial  protection  by  the  diplomatic  and  consular 
agents  of  the  powers  in  Turkey  is  recognized,  both  as  regards  the 
above-mentioned  persons  and  their  religious,  charitable,  and  other 
establishments  in  the  holy  places  and  elsewhere."  4  Hertslet,  p. 
2797. 

In  1891,  Mr.  Blaine,  Secretary  of  State,  sent  a  communication 
to  the  United  States  minister  at  St.  Petersburg  in  regard  to  the 
treatment  of  Jews  in  Russia,  closing  with  the  statement  of  the  posi- 
tion of  the  United  States: 

"The  government  of  the  United  States  does  not  assume  to  dictate 
the  internal  policy  of  other  nations,  or  to  make  suggestions  as  to 


§  23)  DUTY    OF    NONINTERVENTION.  65 

In  general,  it  may  be  said  that  in  actual  practice  intervention 
becomes  a  matter  of  policy.  Nonintervention  is  the  duty  rest- 
ing upon  states  as  regards  one  another's  affairs.  Each  state 
must  judge  for  itself  of  the  propriety  of  intervention,  or  of 
an  agreement  to  intervene  vmder  given  conditions,  and  must 
then  abide  the  consequences.  In  practice  it  has  never  been 
difHcult  to  find  an  ostensible  reason  for  intervention  in  the 
affairs  of  a  foreign  state,  w^hen  the  wish  was  present. 

Formerly  the  tender  of  good  offices  or  of  mediation  by  a 
third  state,  in  case  of  disagreement  between  two  states,  was 
sometimes  regarded  as  intervention,  and  as  an  unfriendly  act; 
but  the  Hague  Convention  for  the  Pacific  Settlement  of  Inter- 
national Disputes,  1907,  provides  that  "the  exercise  of  this 
right  can  never  be  regarded  by  the  one  or  the  other  of  the 
parties  in  dispute  as  an  unfriendly  act."  ^^  Thus,  for  the 
states  parties  to  the  convention,  constituting  practically  all 
civilized  nations,  the  tender  of  good  offices  and  mediation  be- 
comes a  right. 

Intervention  as  a  policy  has  been  avowed  by  a  group  of 
states  as  in  the  "balance  of  power"  doctrine,  and  by  a  single 
state  as  in  the  "Monroe  Doctrine." 

what  their  municipal  laws  should  be,  or  as  to  the  manner  in  which 
they  should  be  administered.  Nevertheless,  the  mutual  duties  of 
nations  require  that  each  should  use  its  power  with  a  due  regard 
for  the  results  which  its  exercise  produces  on  the  rest  of  the  world. 
It  is  in  this  respect  that  the  condition  of  the  Jews  in  Russia  is 
now  brought  to  the  attention  of  the  United  States,  upon  whose 
shores  are  cast  daily  evidences  of  the  suffering  and  destitution 
wrought  by  the  enforcement  of  the  edicts  against  this  unhappy 
people.  I  am  persuaded  that  His  Imperial  Majesty  the  Emperor  of 
Russia  and  his  councilors  can  feel  no  sympathy  with  measux'es  which 
are  forced  upon  other  nations  by  such  deplorable  consequences. 

"You  will  read  this  instruction  to  the  minister  of  foreign  affairs, 
and  give  him  a  copy  if  he  desires  it." 

Foreign  Relations  U.  S.,  1891,  p.  739. 

16  Title  II,  art.  3,  Appendix,  p.  520. 

Wfls.Int.L.— 5 


66  EXISTENCE,  INDEPENDENCE   AND   EQUALITY.  (Cll.  2 


POLICY    OF   INTERVENTION. 

24.  Tvtro  Tirell-establislied  policies  have  been  based  upon  inter- 
vention, viz.,  the  balance  of  po^ver  in  Europe,  and  the 
Monroe  Doctrine  in  America. 

(a)  The  maintenance   of  the  balance   of  po\eer  implied   that 

the  members  of  the  European  family  of  nations  ivould 
vieiv  as  a  cause  for  intervention  the  concentration  of 
such  -poxveT  in  any  one  of  its  members  as  to  enable 
that  state  to  coerce  the   others. 

(b)  The    Monroe    Doctrine    implied    that    the    United    States 

TO-ould  viewT  as  a  just  ground  for  intervention  any  at- 
tempt to  extend  European  dominance  on  the  American 
continent. 

The  principle  underlying  the  doctrine  of  the  balance  of 
power  seems  to  be  that  the  increase  in  the  power  of  one  state 
or  the  change  in  relations  of  states  may  endanger  the  existence 
of  others ;  hence  it  is  necessary  that  states  in  such  geograph- 
ical proximity  as  to  be  endangered  must  take  measures  for 
their  preservation.  There  is  no  claim  that  the  increase  in 
power  or  change  in  relations  may  involve  wrong  dealing  or 
injustice,  but  rather  that,  owing  to  the  neighborhood  of  the 
states,  their  security  as  political  unities  is  involved.  This  may 
be  interpreted  so  as  to  justify  the  refusal  of  the  fruits  of  con- 
quest or  diplomatic  negotiations  to  a  state,  or  so  as  to  uphold 
the  government  of  a  weak  state,  lest  a  strong  state  may  absorb 
it,  and  thus  disturb  the  equilibrium. 

(a)  Some  ideas  of  the  European  balance  of  power  among 
states  appear  very  early.^*^  The  Treaty  of  Westphalia,  1648, 
embodies  its  principles.  The  Treaty  of  Utrecht  between  Great 
Britain  and  Spain,  in  1713,  gives  as  its  object  the  establish- 

16  Hill,  speaking  of  the  end  of  the  fifteenth  century,  says: 
"Too  distrustful  of  one  another's  designs  to  unite  in  permanent 
confederations,  the  Italians  had  learned  to  preserve  their  local  inde- 
pendence by  a  system  of  diplomatic  equilibrium.  In  the  conflict  for 
pre-eminence  which  was  soon  to  fill  the  broader  arena  of  Europe,  the 
experience  of  Italy  was  to  furnish  the  method  by  which  the  nations 
were  to  maintain  their  local  sovereignty  against  imperial  aspira- 
tions so  colossal  in  their  proportions  as  to  render  the  pretensions  of 
the  past  comparatively  insignificant."  II  History  of  European  Diplo- 
macy, p.  164. 


§  24)  POLICY    OF   INTERVENTION.  67 

ment  of  peace  and  tranquility  in  Christendom  through  a  just 
equihbrium  of  power.  This  object  was  frequently  reaffirmed 
in  treaties  during  the  eighteenth  century.  The  memory  of  ac- 
quisition of  great  power  in  the  hands  of  a  single  ruler  at  the 
time  of  Napoleon  caused  all  European  states  to  view  with 
suspicion  the  increase  of  power  in  the  hands  of  any  ruler.  To 
protect,  to  maintain,  or  to  re-establish  the  balance  of  power 
or  the  European  equilibrium  was  a  common  nominal  object 
for  which  conferences  were  called  and  agreements  made  dur- 
ing the  nineteenth  century.  The  European  states  have  particu- 
larly concerned  themselves  with  the  status  of  Southeastern 
Europe.  Each  power  feared  any  movement  which  would 
change  the  conditions  in  these  domains.  An  Asiatic  rule  at 
one  of  the  most  important  strategic  positions  in  Europe  has 
been  maintained  through  fear  of  the  results  if  Constantinople 
should  fall  into  the  hands  of  a  European  power.  Conferences,, 
in  which  representatives  of  the  peoples  directly  concerned 
have  not  been  present,  have  settled  the  boundaries,  political' 
relations,  etc.,  of  countries  of  Southeastern  Europe. 

(b)  Referring  to  the  claims  of  Russia  on  the  northwest  coast 
of  the  American  continent,  President  Alonroe,  in  his  message 
of  December  2,  1823,  said:  "The  occasion  has  been  judged 
proper  for  asserting  as  a  principle  in  which  the  rights  and  in- 
terests of  the  United  States  are  involved  that  the  American 
continents,  by  the  free  and  independent  condition  which  they 
have  assumed  and  maintain,  are  henceforth  not  to  be  consid- 
ered as  subjects  for  future  colonization  by  any  European  pow- 
ers." As  to  the  attitude  of  the  allied  powers  toward  the  states 
to  the  south  of  the  United  States  he  says :  "We  owe  it,  there- 
fore, to  candor,  and  to  the  amicable  relations  existing  between 
the  United  States  and  those  powers,  to  declare  that  we  should 
consider  any  attempt  on  their  part  to  extend  their  system  to 
any  portion  of  this  hemisphere  as  dangerous  to  our  peace  and 
safety.  With  the  existing  colonies  or  dependencies  of  any 
European  power  we  have  not  interfered,  and  shall  not  inter- 
fere. But  with  the  governments  who  have  declared  their  in- 
dependence, and  maintained  it,  and  whose  independence  we 
have,  on  great  consideration  and  on  just  principles,  acknowl- 
edged, we  could  not  view  any  interposition  for  the  purpose  of 
oppressing   them,   or   controlling  in  any   other  manner   their 


68  EXISTENCE,  INDEPENDENCE   AND   EQUALITY.  (Ch.  2 

destiny,  by  any  European  power,  in  any  other  light  than  as  the 
manifestation  of  an  unfriendly  disposition  toward  the  United 
States." 

Thus  there  was  announced  the  doctrine  that  (1)  the  Ameri- 
can continents  "are  henceforth  not  to  be  considered  as  sub- 
jects for  future  colonization  by  any  European  powers";  (2) 
the  United  States  would  "consider  any  attempt  on  their  part 
to  extend  their  system  to  this  hemisphere  as  dangerous  to  our 
peace  and  safety" ;  and  (3)  as  to  existing  governments  on  the 
American  continent  the  United  States  would  "not  view  any 
interposition  for  the  purpose  of  oppressing  them,  or  control- 
ling in  any  other  manner  their  destiny,  by  any  European  pow- 
er, in  any  other  light  than  as  the  manifestation  of  an  un- 
friendly disposition  toward  the  United  States."  This  state- 
ment of  policy  received  the  name  of  the  "Monroe  Doctrine."  ^'^ 

It  is  accepted  that,  while  the  doctrine  is  generally  called  by 
the  name  of  the  President,  it  was  in  a  sense  not  his  work,  but 
was  distinctly  "the  work  of  John  Quincy  Adams."  ^* 

While  the  doctrine  has  never  received  formal  sanction  by 
Congress,  Congress  has  many  times  taken  action  in  accord 
with  its  principles.  Secretaries  of  State  have  reaffirmed  it. 
Presidents  have  interpreted  it  to  meet  the  needs  of  the  period, 
and,  though  no  action  was  taken  by  the  Hague  Conferences, 
it  was  formally  mentioned  in  the  reservation  under  which  the 
United  States  became  a  party  to  The  Hague  Conventions  for 
the  Pacific  Settlement  of  International  Disputes  of  1899  and 
1907.  ^^ 

17  President  Monroe's  Message,  December  2,  1823.  > 

18  John  Quincy  Adams  and  the  ^Monroe  Doctrine,  Worthiugtou 
C.  Ford,  7  Amer.  Historical  Rev.  1902,  (376,  and  8  Id.  28 ;  Reddaway, 
The  Monroe  Doctrine.  87 ;  Hurt,  Foundations  of  American  Foreign 
Policy,  214;  Tucker.  The  Monroe  Doctrine,  12. 

19  "Nothing  contained  in  this  convention  shall  be  so  construed  as 
to  require  the  United  States  of  America  to  depart  from  its  tradi- 
tional policy  of  not  intruding  upon,  interfering  with,  or  entangling 
itself  in  the  political  questions  of  policy  or  internal  administration 
of  any  foreign  state;  nor  shall  anything  contained  in  the  said  con- 
vention be  construed  to  imply  a  relinquishment  by  the  United  States 
of  America  of  its  traditional  attitude  toward  purely  American  ques- 
tions." 

TSTiile  the  United  States  participated  in  the  International  Confer- 


§  24)  POLICY    OF   INTERVENTION.  &9 

In  commenting'  on  this  action,  President  Roosevelt  gives  a 
broad  interpretation  to  the  earher  doctrine  in  his  message  of 
December  3,  1901 : 

"This  same  peace  conference  acquiesced  in  our  statement  of 
the  Monroe  Doctrine  as  compatible  with  the  purposes  and 
aims  of  the  conference. 

"The  Monroe  Doctrine  should  be  the  cardinal  feature  of 
the  foreign  policy  of  all  the  nations  of  the  two  Americas,  as 
it  is  of  the  United  States.  Just  seventy-eight  years  have 
passed  since  President  Monroe  in  his  annual  message  an- 
nounced that  'the  American  continents  are  henceforth  not  to 
be  considered  as  subjects  for  future  colonization  by  any 
European  power.'  In  other  words,  the  Monroe  Doctrine  is  a 
declaration  that  there  must  be  no  territorial  aggrandizement  by 

ence  of  Algeciras  and  with  the  European  powers  signed  the  General 
Act  of  April  17,  190G,  it  was  done  under  reservation  that  this  ac- 
tion was  for  the  general  protection  of  United  States  interests  in 
Morocco  and  was  without  "assuming  obligation  or  responsibility  for. 
the  enforcement  thereof."  The  United  States  Senate  appended  a 
further  explanation  of  the  conditions  of  ratification  to  the  effect 
that  it  was  "without  purpose  to  depart  from  the  traditional  Amer- 
ican foreign  policy,  which  forbids  participation  by  the  United  States 
in  the  settlement  of  political  questions  which  are  entirely  European 
in  their  scope."    1  Amer.  Jour.  Int.  Law,  Official  Documents,  p.  47. 

In  a  pro  memoria  of  December  11,  1901,  the  German  ambassador 
to  the  United  States  distinctly  announced  the  intention  of  Germany 
to  observe  the  Monroe  Doctrine  while  pressing  the  claims  against 
Venezuela: 

"The  Imperial  Government  proposes  therefore  to  submit  the  recla- 
mations in  question,  which  have  been  carefully  studied  and  have 
been  considered  as  well  founded,  directly  to  the  Venezuelan  Govern- 
ment, and  to  ask  for  their  settlement.  If  the  Venezuelan  Govern- 
ment continues  to  decline  as  before,  it  would  have  to  be  considered 
what  measures  of  coercion  should  be  used  against  it. 

"But  we  consider  it  of  importance  to  let  first  of  all  the  Govern- 
ment of  the  United  States  know  about  our  purposes,  so  that  we  can 
prove  that  we  have  nothing  else  in  view  than  to  help  those  of  our 
citizens  who  have  suffered  damages,  and  we  shall  first  take  into  con- 
sideration only  the  claims  of  those  German  citizens  who  have  suf- 
fered in  the  civil  war. 

"We  declare  especially  that  under  no  circumstances  do  we  con- 
sider in  our  proceedings  the  acquisition  or  the  permanent  occupation 
of  Venezuelan  territory." 

Foreign  Relations  U.   S.,   1901,  p.   194. 


70  EXISTENCE,  IXDETEXDENCE   AND   EQUALITY,  (Ch.  2 

any  non-American  power  at  the  expense  of  any  American  pow- 
er on  American  soil.  It  is  in  no  wise  intended  as  hostile  to 
any  nation  in  the  Old  World.  Still  less  is  it  intended  to  give 
cover  to  any  agc^rcssion  by  one  New  World  power  at  the  ex- 
pense of  any  other.  It  is  simply  a  step,  and  a  long  step,  to- 
ward assuring  the  universal  peace  of  the  world  by  securing 
the  possibility  of  permanent  peace  on  this  hemisphere. 

"During  the  past  century  other  influences  have  established 
the  permanence  and  independence  of  the  smaller  states  of 
Europe.  Through  the  Monroe  Doctrine  we  hope  to  be  able  to 
safeguard  like  independence  and  secure  like  permanence  for 
the  lesser  among  the  New  World  nations. 

"This  doctrine  has  nothing  to  do  with  the  commercial  rela- 
tions of  any  American  power,  save  that  it  in  truth  allows  each 
of  them  to  form  such  as  it  desires.  In  other  words,  it  is  really 
a  guaranty  of  the  commercial  independence  of  the  Americas. 
We  do  not  ask  under  this  doctrine  for  any  exclusive  commer- 
cial dealings  with  any  other  American  state.  We  do  not  guar- 
antee any  state  against  punishment  if  it  misconducts  itself, 
provided  that  punishment  does  not  take  the  form  of  the  ac- 
quisition of  territory  by  any  non- American  power."  -° 

In  the  message  of  December  6,  1904:,  President  Roosevelt 
says : 

"Chronic  wrongdoing,  or  an  impotence  which  results  in  a 
general  loosening  of  the  ties  of  civilized  society,  may  in  Amer- 
ica, as  elsewhere,  ultimately  require  intervention  by  some  civil- 
ized nation,  and  in  the  Western  Hemisphere  the  adherence  of 
the  United  States  to  the  Monroe  Doctrine  may  force  the  United 
States,  however  reluctantly,  in  flagrant  cases  of  such  wrong- 
doing or  impotence,  to  the  exercise  of  an  international  police 
power."  ^^ 

In  the  actual  strain  of  diplomatic  relations  consequent  upon 
the  controversy  over  the  boundary  between  Venezuela  and 
British  Guiana,  the  United  States  formally  declared  in  1895 
the  intention  to  support  the  Monroe  Doctrine.  President 
Cleveland  said : 

"If  the  balance  of  power  is  justly  a  cause  for  jealous  anxiety 
among  the  governments  of  the  Old  World,  and  a  subject  for 

20  Foreign  Relations  U.  S.,  1901,  p.  xxxvi. 

21  Foreign  Relations  U.  S.,  1904,  p.  xli. 


§  24)  POLICY    OF   INTERVENTION.  71 

our  absolute  noninterference,  none  the  less  is  an  observance  of 
the  Monroe  Doctrine  of  vital  concern  to  our  people  and  their 
government. 

"Assuming,  therefore,  that  we  may  properly  insist  upon 
this  doctrine,  without  regard  to  'the  state  of  things  in  which 
we  live,'  or  any  changed  conditions  here  or  elsewhere,  it  is  not 
apparent  why  its  application  may  not  be  invoked  in  the  present 
controversy. 

"If  a  European  power,  by  an  extension  of  its  boundaries, 
takes  possession  of  the  territory  of  one  of  our  neighboring 
Republics,  against  its  will  and  in  derogation  of  its  rights,  it  is 
difficult  to  see  why  to  that  extent  such  European  power  does 
not  thereby  attempt  to  extend  its  system  of  government  to 
that  portion  of  this  continent  which  is  thus  taken.  This  is  the 
precise  action  which  President  Monroe  declared  to  be  'dan- 
gerous to  our  peace  and  safety,'  and  it.  can  make  no  difference 
whether  the  European  system  is  extended  by  an  advance  of 
frontier  or  otherwise."  ^^ 

The  principles  set  forth  in  the  Monroe  Doctrine  have  been 
variously  interpreted."^  Foster,  reviewing  American  diplo- 
macy from  1776  to  1876,  says : 

"From  the  foregoing  historical  review  I  think  it  may  be 
fairly  deduced  that  the  principle  or  policy  of  the  government 
ot  the  United  States,  known  as  the  Monroe  Doctrine,  declares 
affirmatively : 

"First.  That  no  European  power,  or  combination  of  powers, 
can  intervene  in  the  affairs  of  this  hemisphere  for  the  purpose, 
or  with  the  effect,  of  forcibly  changing  the  form  of  govern- 
ment of  the  nations,  or  controlling  the  free  will  of  their  people. 

"Second.  That  no  such  power  or  powers  can  permanently 
acquire  or  hold  any  new  territory  or  dominion  on  this  hemi- 
sphere. 

"Third.  That  the  colonies  or  territories  now  held  by  them 
cannot  be  enlarged  by  encroachment  on  neighboring  territory, 
nor  be  transferred  to  any  other  European  power;  and,  while 
the  United  States  does  not  propose  to  interfere  with  existing 


2  2  Foreign  Relations  U.  S.,  pt.  1,  1S95,  p.  542. 
2  3  6  Moore,  §§  927-969. 


72  EXISTKXCK,  INDEPRNDKNCH   AND   EQUALITY.  (Ch.  2 

colonies,  'it  looks  hopefully  to  the  time  when  *  *  *  Amer- 
ica shall  be  wholly  American.' 

"Fourth.  That  any  interoceanic  canal  across  the  isthmus  of 
Central  America  must  be  free  from  the  control  of  European 
powers. 

"While  each  of  the  foreg^oing  declarations  has  been  officially 
recognized  as  a  proper  application  of  the  Monroe  Doctrine,  the 
government  of  the  United  States  reserves  to  decide,  as  each 
case  arises,  the  time  and  manner  of  its  interposition,  and  the 
extent  and  character  of  the  same,  whether  moral  or  material, 
or  both. 

"The  Monroe  Doctrine,  as  negatively  declared,  may  be 
stated  as  follows : 

"First.  That  the  United  States  does  not  contemplate  a  per- 
manent alliance  with  any  other  American  power  to  enforce 
the  doctrine,  as  it  determines  its  action  solely  by  its  view  of  its 
own  peace  and  safety ;  but  it  welcomes  the  concurrence  and 
co-operation  of  the  other  in  its  enforcement,  in  the  way  that 
to  the  latter  may  seem  best. 

"Second.  That  the  United  States  does  not  insist  upon  the 
exclusive  sway  of  republican  government ;  but,  while  favoring 
that  system,  it  recognizes  the  right  of  the  people  of  every 
country  on  this  hemisphere  to  determine  for  themselves  their 
form  of  government. 

"Third.  That  the  United  States  does  not  deny  the  right  of 
European  governments  to  enforce  their  just  demands  against 
American  nations,  Avithin  the  limits  above  indicated. 

"Fourth.  That  the  United  States  does  not  contemplate  a 
protectorate  over  any  other  American  nation,  seek  to  control 
the  latter's  conduct  in  relation  to  other  nations,  nor  become  re- 
sponsible for  its  acts."  ^* 

In  1902,  in  a  note,  Mr.  Drago,  the  Minister  of  Foreign  Re- 
lations of  the  Argentine  Republic,  referring  to  the  collection 
of  loans  by  military  means,  said  that  this  practice  upon  the 
part  of  the  European  states  as  regards  South  American  states 
implied  territorial  occupation  of  South  American  states.  He 
stated  that :  "Such  a  situation  seems  obviously  at  variance 
with  the  principles  many  times  proclaimed  by  the  nations  of 

2  4  Foster,  A  Century  of  American  Diplomacy,  1776-1876,  p.  475. 


§  25)  RIGHT   OF    EQUALITY.  73 

America,  and  particularly  with  the  Monroe  Doctrine,  sustained 
and  defended  with  so  much  zeal  on  all  occasions  by  the  United 
States,  a  doctrine  to  which  the  Argentine  Republic  has  hereto- 
fore solemnly  adhered.  *  *  *  In  a  word,  the  principle 
which  she  [the  Argentine  Republic]  would  like  to  see  recog- 
nized is:  That  the  public  debt  cannot  occasion  armed  inter- 
vention, nor  even  the  actual  occupation  of  the  territory  of 
American  nations,  by  a  European  power."  ^^  This  principle 
is  known  as  the  "Drago  Doctrine."  The  United  States  an- 
nounced that,  without  expressing  assent  to  or  dissent  from  the 
propositions,  the  general  position  of  the  government  had  been 
expressed  in  the  President's  message  of  December  3,  1901 : 
"We  do  not  guarantee  any  state  against  punishment  if  it  mis- 
conducts itself,  provided  that  punishment  does  not  take  the 
form  of  the  acquisition  of  territory  by  any  non-American 
power," 

This  principle,  brought  before  the  Hague  Conference  of 
1907  by  the  American  plenipotentiary,  General  Porter,  after 
discussion,  took  form  in  a  Convention  Respecting  the  Limita- 
tion of  the  Employment  of  Force  for  the  Recovery  of  Contract 
Debts : 

"Art.  I.  The  contracting  powers  agree  not  to  have. recourse 
to  armed  force  for  the  recovery  of  contract  debts  claimed  from 
the  government  of  one  country  by  the  government  of  another 
country  as  being  due  to  its  nationals." 

The  United  States  did  not  in  this  convention,  as  in  the  case 
of  the  Convention  for  the  Pacific  Settlement  of  International 
Disputes,  enter  the  reservation  embodying  the  Monroe  Doc- 
trine. 

RIGHT   OF   EQUALITY. 

25.  Eacb  state  of  the  family  of  nations  is  regarded  as  having 
similar  privileges,  immunities,  and  duties,  as  regards 
international  law^,  though  inequalities  may  exist  in 
the  amount  of  poxver  '^hich  each  may  exercise  in  in- 
terstate relations. 

The  breaking  up  of  the  political  unity  of  Christendom  in  the 
sixteenth  century  brought  new  theories  of  the  state.     Bodin's 

2  0  Foreign  Relations  U.  S.,  1903,  p.  3. 


74  EXISTENCE,  INDEPENDENCE   AND    EQUALITY.  (Cll.  2 

theory  of  sovereignty  as  absolute,  indivisible,  and  inalienable 
made  comparatively  simple  the  development  of  the  doctrine  of 
the  equality  of  states  under  the  influence  of  the  concepts  of 
natural  law  current  at  that  period.  Grotius  (1583-1645), 
strongly  influenced  by  the  theory  of  natural  law,  emphasizes 
the  necessity  for  the  recognition  of  equality  in  the  domain 
of  law.-®  The  equality  was  not  of  power,  territory,  popula- 
tion, influence,  or  honor,  but  equality  in  the  sense  of  having 
the  same  attributes  as  states.  On  the  ground  of  equality,  re- 
gardless of  extent  of  territory  or  number  of  population,  each 
state  of  the  family  of  nations  has  a  similar  status  at  interna- 
tional law. 

The  doctrine  of  equality  has  been  denied  by  many  writers 
upon  international  law,  and  certainly  in  wealth,  in  age,  and  in 
many  other  respects  states  are  not  equal.  However,  whether 
wisely  or  unwisely,  in  the  two  recent  international  conferences 
at  The  Hague  in  1899  and  in  1907,  the  equality  of  states  tak- 
ing part  in  the  conferences  was  fully  recognized  in  voting  up- 
on the  matters  under  consideration. 

In  actual  practice,  inequalities  exist  in  the  amount  of  in- 
fluence exercised  by  different  states.  Austria-Hungary, 
France,  Germany,  Great  Britain,  Italy,  and  Russia  are  recog- 
nized as  the  Great  Powers  in  Europe.  Certain  others  are  rec- 
ognized as  the  Minor  Powers.  In  recent  years,  those  states 
which  have  possessions  of  such  wide  extent  as  to  involve  them 
in  relations  with  many  other  states  have  come  to  be  called 
"World  Powers."  Not  all  the  Great  Powers  of  Europe  are  in- 
cluded among  the  World  Powers,  and  other  than  European 
states  have  equal  claim  to  be  regarded  as  Great  Powers. 

Other  inequalities  are  manifest  in  matters  of  ceremonial  and 
precedence.  Such  marks  of  inequality  frequently  have  their 
bases  in  conditions  which  have  ceased  to  exist,  as  when  king- 
doms claimed  precedence  over  republics,  because  kingdoms 
were  regarded  as  entitled  to  royal  honors,  or  when  kings  and 
emperors  claimed  the  sole  right  to  send  diplomats  of  the  rank 
of  ambassadors. 

Each  state  now  claims  equal  right  to  determine  the  form  of 
its  internal  government,  whether  monarchical  or  republican,  the 

2  8  Grotius,  De  Jure  Belli  ac  Pacis,  Prolegomena  xxiii. 


§  25)  RIGHT   OF    EQUALITY.  75 

privileges  due  to  its  personality,  and  immunity  from  any  ac- 
tion on  the  part  of  other  states  which  would  be  in  derogation 
of  its  sovereignty. 

In  1825  Chief  Justice  Marshall  maintained  that:  "No  prin- 
ciple of  general  law  is  more  universally  acknowledged  than  the 
perfect  equality  of  nations.  Russia  and  Geneva  have  equal 
rights.  It  results  from  this  equality  that  no  one  can  rightfully 
impose  a  rule  on  another.  Each  legislates  for  itself,  but  its 
legislation  can  operate  on  itself  alone.  A  right,  then,  which  is 
vested  in  all  by  the  consent  of  all,  can  be  devested  only  by  con- 
sent. *  *  *  As  no  nation  can  prescribe  a  rule  for  others, 
none  can  make  a  law  of  nations."  ^^ 

2T  The  Antelope,  10  Wheat.  66,  6  L.  Ed.  268. 


76  PROPERTY   AND   DOMAIN.  (Cb.  3 

CHAPTER  III. 
PROPERTY  AND  DOMAIN. 

2G.  Property. 

27.  Domain. 

28.  Acquisition  of  Territorial  Domain. 

29.  Maritime  and  Fluvial  Domain. 

30.  Aerial  Donuiin. 

PROPERTY. 

26.  A  state,  as  a  public  person,  may  hold  property  in  tlie 
sense  o£  absolute  ournersbip,  and  the  treatment  of  such 
property,  both  in  peace  and  in  Ttrar,  may  be  determined 
by  the  status  of  the  owner,  rather  than  by  the  locus 
and  nature  of  the  thing  itself. 

In  time  of  peace,  public  property,  as  vessels  belonging  to  one 
state  within  the  ports  of  another  state,  or  the  official  residences 
of  diplomats,  receive  special  exemptions.^  In  the  time  of  war, 
public  property  of  one  belligerent  state  is  liable  to  special  se- 
verity of  treatment  by  the  other  belligerent.  Cash,  funds,  and 
property  liable  to  requisition,  and  belonging  strictly  to  the  state, 
is  liable  to  be  taken,  while  similar  property  belonging  to  pri- 
vate persons,  if  appropriated,  must  be  made  good  at  the  con- 
clusion of  peace.*    Neutral  public  property  also  receives  special 

1  Vavasseur  v.  Krupp,  L.  R.  9  Ch.  Div.  351,  Scott's  Cases,  182  seq. 
"As  a  consequence  of  the  absolute  independence  of  every  sovereign 
authority,  and  of  the  international  comity  which  induces  every  sov- 
ereign state  to  respect  the  independence  of  every  other  sovereign 
state,  each  and  every  one  declines  to  exercise,  by  means  of  any  of 
its  courts,  any  of  its  territorial  jm-isdiction  over  the  person  of  any 
sovereign  or  ambassador  of  any  other  state,  or  over  the  public 
property  of  any  state  which  is  destined  to  its  public  use,  or  over 
the  property  of  any  ambassador,  though  such  sovereign,  ambassador, 
or  property  be  within  its  territory,  and  therefore,  but  for  the  common 
agreement,  subject  to  its  jurisdiction."  The  Parlement  Beige,  L.  R. 
5  P.  Div.  197. 

2  Hague  Convention,  Laws  and  Customs  of  War  on  Laud,  art.  r>'6. 
Appendix,  p.  f)44. 


§  26)  PROPERTY.  7t 

exemption  in  time  of  war.  A  neutral  public  vessel  is  exempt 
from  visit  and  search,  to  which  a  neutral  private  vessel  is  li- 
able. On  the  other  hand,  in  time  of  war  the  neutral  state  can- 
not give  the  same  privileges  to  certain  public  vessels  of  the 
belligerents  as  in  time  of  peace,  e.  g.,  in  permitting  equipment 
in  the  neutral  port;  while  private  vessels  in  time  of  war  are 
generally  allowed  the  same  privileges  as  in  time  of  peace. 

The  public  property  appertaining  to  a  given  territory  passes 
from  one  state  to  another  on  the  transfer  of  sovereignty,  but 
the  status  of  private  property  would  remain  unchanged  so  far 
as  it  was  not  repugnant  to  the  laws  of  the  new  sovereign.' 

3  "By  the  cession  public  property  passes  from  one  goverument  to 
the  other,  but  private  property  remains  as  before,  aucl  with  it  those 
municipal  laws  which  are  designed  to  s.ecure  its  peaceful  use  and 
enjoyment.  As  a  matter  of  course,  all  laws,  ordinances,  and  regula- 
tions in  conflict  with  the  political  character,  institutions,  and  con- 
stitution of  the  new  government  are  at  once  displaced.  Thus,  upon 
a  cession  of  political  jurisdiction  and  legislative  power — and  the 
latter  is  involved  in  the  former — to  the  United  States,  the  laws 
of  the  country  in  support  of  an  established  religion,  or  abridging  the 
freedom  of  the  press,  or  authorizing  cruel  and  unusual  punishments, 
and  the  like,  would  at  once  cease  to  be  of  obligatory  force  without 
any  declaration  to  that  effect ;  and  the  laws  of  the  country  on  other 
subjects  would  necessarily  be  superseded  by  exis.ting  laws  of  the 
new  government  upon  the  same  matters.  But  with  respect  to  other 
laws  affecting  possession,  use,  and  transfer  of  property,  and  designed 
to  secure  good  order  and  peace  in  the  community,  and  promote  its 
health  and  prosperity,  which  are  strictly  of  a  municipal  character, 
the  rule  is  general  that  a  change  of  government  leaves  them  in  force 
until,  by  direct  action  of  the  new  government,  they  are  altered  or 
repealed."  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  McGlinn,  114  U.  S.  542, 
5  Sup.  Ct.  1005,  29  L.  Ed.  270. 

"No  proceedings  affecting  the  rights  of  the  new  sovereign  over 
public  property  can  be  taken,  except  in  pursuance  of  his  authority 
on  the  subject."  More  v.  Steinbach,  127  U.  S.  70,  8  Sup.  Ct.  1067, 
32  L.  Ed.  51. 

The  nature  of  the  transfer  is  indicated  in  the  Joint  Resolution 
to  Provide  for  Annexing  the  Hawaiian  Islands  to  the  United  States, 
1898:  "Whereas,  the  government  of  the  Republic  of  Hawaii  having 
in  due  form  s.ignified  its  consent,  in  the  manner  provided  by  Its 
Constitution,  to  cede,  absolutely  and  without  reserve,  to  the  United 
States  of  America,  all  rights  of  sovereignty  of  whatsoever  kind  in 
and  over  the  Hawaiian  Islands  and  their  dependencies,  and  also 
to  cede  and  transfer  to  the  United  States  the  absolute  fee  and  owner- 


78  PROPERTY   AND   DOMAIN.  (Cll.  3 

Under  the  right  of  eminent  domain,  a  state,  in  accordance 
with  the  laws,  has  the  right  to  resume,  when  pubHc  interest  re- 
quires it,  possession  of  any  property  within  the  state. 


DOMAIN. 

27.  The  term  "domain,"  or  sonietimes  "territory,"  is  used  to 
cover  the  sphere  within  which  a  state  may  exercise 
its  sovereignty. 

The  word  "territory,"  from  its  derivation  and  history,  nat- 
urally emphasizes  the  idea  of  sovereignty  over  land,  which  is 
an  essential  condition  of  state  existence.  The  word  "domain" 
refers  rather  to  the  entire  range  of  exercise  of  dominion.  It 
is  accordingly  becoming  more  common  to  use  the  word  "ter- 
ritory" in  the  stricter  sense  as  applying  to  the  land  of  a  state, 
over  which  the  sovereignty  is  more  absolute  than  over  the  wa- 
ter or  atmosphere.  While  the  term  "maritime  territory"  is 
sometimes  used,  it  seems  to  involve  a  contradiction,  as  would 
"aerial  territory." 

Domain  may  accordingly  be 

(a)  Territorial, 

(b)  Maritime  or  fluvial,  or 

(c)  Aerial. 

(a)  As  against  all  other  states,  a  state  has  exclusive  title  to 
all  its  land  and  its  appurtenances,  and  a  paramount  title  as  re- 
gards its  own  subjects,  as  is  shown  in  the  right  of  eminent  do- 
main. The  territorial  domain  its  coterminous  with  the  land 
belonging  to  the  state  or  under  its  sovereignty  for  the  time  be- 
ing. 

(b)  In  general,  the  sovereignty  over  maritime  and  fluvial  do- 
main is  limited,  and  rights  of  the  state  to  the  neighboring  sea 
and  certain  other  waters  are  not  exclusive.  Wheaton  says : 
"Things  of  which  the  use  is  inexhaustible,  such  as  the  sea  and 
running  water,  cannot  be  so  appropriated  as  to  exclude  others 

ship  of  all  public,  government,  or  crown  lands,  public  buildings  or 
edifices,  ports,  harbors,  military  equipment,  and  all  other  public 
property  of  every  kind  and  description  belonging  to  the  govern- 
ment of  the  Hawaiian  Islands,  together  with  every  right  and  ap- 
purtenance thereunto  appertaining."    30  Stat.  750. 


§  28)  ACQUISITION    OF   TERRITOKIAL    DOMAIN.  79 

from  using  these  elements  in  any  manner  which  does  not  occa- 
sion a  loss  or  inconvenience  to  the  proprietor."* 

(c)  The  principle  enunciated  by  Wheaton  above  applies  in 
a  general  way  to  aerial  domain. 

ACQUISITION   OF   TERRITORIAJL   DOMAIN. 

28.  Tlie  title  to  territorial  domain  is  now  usually  based  on 
occupation,  prescription,  accretion,  conquest,  or  ces- 
sion. 

The  methods  of  acquisition  of  title  to  territorial  domain  have 
been  variously  classified.  Some  writers  recognize  only  two  or 
three  methods,  from  which  others  are  derived;  others  enu- 
merate a  large  number.^  The  methods  most  commonly  ac- 
cepted at  present  are  (a)  occupation;  (b)  prescription;  (c) 
accretion;  (d)  conquest;    (e)  cession. 

(a)  Occupation  is  the  basis  of  the  title  to  the  original  terri- 
torial domain  of  many  states.  An  inchoate  title  is  obtained  by 
discovery  of  land  hitherto  unknown  to  civilized  states ;  but,  in 
order  that  this  title  may  be  good  against  other  states,  it  must 
be  followed  by  occupation,^  or  by  some  other  act  which  may  be 

4  "S\n3eaton,  International  Law,  §  193. 

s  Ullmau,  Volkerrecht,  §  81,  derives  all  forms  from  cession  and 
occupation. 

6  "On  the  discovery  of  this  immense  continent,  the  great  nations 
of  Europe  were  eager  to  appropriate  to  themselves  so  much  of  it 
as  they  could  respectively  acquire.  Its  vast  extent  offered  an  ample 
field  to  the  ambition  and  enterprise  of  all ;  and  the  character  and 
religion  of  its  inhabitants  afforded  an  apology  for  considering  them 
as  a  people  over  whom  the  superior  genius  of  Europe  might  claim 
an  ascendency.  The  potentates  of  the  old  world  found  no  difficulty 
in  convincing  themselves  that  they  made  ample  compensation  to  the 
inhabitants  of  the  new  by  bestowing  on  them  civilization  and 
Christianity,  in  exchange  for  unlimited  independence.  But,  as  they 
were  all  in  pursuit  of  nearly  the  same  object,  it  was  necessary,  in 
order  to  avoid  conflicting  settlements,  and  consequent  war  with  each 
other,  to  establish  a  principle  which  all  should  acknowledge  as 
the  law  by  which  the  right  of  acquisition,  which  they  all  asserted, 
should  be  regulated  as  between  themselves.  This  principle  was  that 
discovery  gave  title  to  the  government  by  whose  subjects,  or  by 
whose  authority,  it  was  made,  against  all  other  European  govern- 
ments, which  title  might  be  consummated  by  possession. 

"The  exclusion   of   all   other  Europeans  necessarily  gave   to   the 


80  PROPEUTV    AND   DOMAIN.  (Cb.  3 

similarly  construed.  General  Act,  chapter  VI.  article  34,  of 
the  Berlin  Conference,  1885,  makes  special  provision  in  re- 
gard to  the  acquisition  of  land  on  the  coasts  of  the  African 
continent,  requiring  that : 

"Any  power  which  henceforth  takes  possession  of  a  tract 
of  land  on  the  coasts  of  the  African  continent  outside  of  its 
present  possessions,  or  which,  being  hitherto  without  such  pos- 
sessions, shall  acquire  them,  as  well  as  the  power  which  as- 
sumes a  protectorate  there,  shall  accompany  the  respective  act 
with  a  notification  thereof,  addressed  to  the  other  signatory 
powers  of  the  present  act,  in  order  to  enable  them,  if  need  be, 
to  make  good  any  claims  of  their  own. 

"The  signatory  powers  of  the  present  act  recognize  the  obli- 
gation to  insure  the  establishment  of  authority  in  the  regions 
occupied  by  them  on  the  coasts  of  the  African  continent  suf- 
ficient to  protect  existing  rights,  and,  as  the  case  may  be,  free- 
nation  making  the  discovery  the  sole  right  of  acquiring  the  soil 
from  the  natives  and  establishing  settlements  upon  it.  It  was  a 
right  with  which  no  Europeans  could  interfere.  It  was  a  right 
which  all  asserted  for  themselves,  and  to  the  assertion  of  which, 
by  others,  all  assented. 

"Those  relations  which  were  to  exist  between  the  discoverer  and 
the  natives  were  to  be  regulated  by  themselves.  The  rights  thus 
acquired  being  exclusive,  no  other  power  could  interpose  between 
them.  *  *  *  If  the  discovei'y  be  made,  and  possession  of  the 
country  be  taken,  under  the  authority  of  an  existing  government, 
which  is  acknowledged  by  the  emigrants,  it  is  supposed  to  be  equally 
well  settled  that  the  discovery  is  made  for  -the  whole  nation,  that 
the  country  becomes  a  part  of  the  nation,  and  that  the  vacant  soil 
is  to  be  disposed  of  by  that  organ  in  w-hich  all  vacant  territory  is 
vested  by  law."    Johnson  v.  Mcintosh,  8  Wheat.  543,  5  L.  Ed.  681. 

"By  law  of  nations,  recognized  by  all  civilized  states,  dominion 
of  new  territory  may  be  acquired  by  discovery  and  occupation,  as 
well  as  by  cession  and  conquest;  and  when  citizens  or  subjects  of 
one  nation,  in  its  name,  and  by  its  authority,  or  with  its  assent,  take 
and  hold  actual,  continuous,  and  useful  possession  (although  only 
for  the  purpose  of  carrying  on  a  particular  business,  such  as  catch- 
ing and  curing  fish,  or  working  mines)  of  territory  unoccupied  by 
any  other  govei'nment  or  its  citizens,  the  nation  to  which  they 
belong  may  exercise  such  jurisdiction  and  for  such  period  as  it  sees 
fit  over  territory  so  acquired."  .Tones  v.  United  States,  137  U.  S. 
202,  11  Sup.  Ct.  80,  34  L.  Ed.  G91. 


§  28)  ACQUISITION    OF   TERRITORIAL   DOMAIN.  81 

dom  of  trade  and  of  transit  under  the  conditions  agreed  up- 
on." ' 

The  Institute  of  International  Law,  at  its  session  in  1888,  ap- 
proved the  plan  of  obligatory  declaration  in  case  of  assumption 
of  possession  of  such  new  territory,  accompanied  by  the  es- 
tablishment of  responsible  local  authority. 

In  early  days  the  possession  of  the  coast  land  was  often 
made  the  basis  of  a  claim  to  unlimited  interior.  "Title  by  oc- 
cupation extends  as  a  rule  to  that  area,  not  under  the  jurisdic- 
tion of  another  state,  which  is  necessary  for  the  safety  of  the 
occupied  area,  or  is  naturally  dependent  upon  it,  as  to  the  ter- 
ritory drained  by  a  river  of  which  a  given  state  holds  the 
mouth."  ^  The  so-called  "Hinterland  Doctrine,"  maintained  by 
some  of  the  European  states,  is  to  the  effect  that  the  occupation 
of  coast  gives  a  claim  to  the  unexplored  interior.  The  theory 
of  a  potential  right  of  domain  without  exploration  or  occupa- 
tion has  been  advanced  in  extreme  forms  in  some  of  the 
agreements  between  states  as  to  "spheres  of  influence."  By 
the  declaration  of  Germany  and  Great  Britain,  in  1886,  in  re- 
gard to  their  spheres  of  influence  in  the  Western  Pacific,  "Ger- 
many engages  not  to  make  acquisitions  of  territory,  accept  pro- 
tectorates, or  interfere  with  the  extension  of  British  influence, 
and  to  give  up  any  acquisitions  of  territory  or  protectorates 
already  established  in  that  part  of  the  Western  Pacific  lying 
to  the  east,  southeast,  or  south  of  the  said  conventional  line." 
Great  Britain  is  similarly  bound.  Both  make  the  following 
reservations :  "This  declaration  does  not  apply  to  the  Naviga- 
tor Islands  (Samoa),  which  are  affected  by  treaties  with  Great 
Britain,  Germany,  and  the  United  States ;  nor  to  the  Friendly 
Islands  (Tonga),  which  are  affected  by  treaties  with  Great 
Britain  and  Germany;  nor  to  the  island  of  Nine  (Savage  Is- 
land), which  groups  of  islands  shall  continue  to  form  a  neutral 
region;  nor  to  any  islands  or  places  in  the  Western  Pacific 
which  are  now  under  the  sovereignty  or  protection  of  any  oth- 
er civilized  power  than  Great  Britain  or  Germany."  " 

7  Pari.  Papers,  Africa  No.  4  (1SS5)  p.  313. 

8  Wilson  &  Tucker,  Int.  Law  (5th  Ed.)  p.  109. 

0  Pari.  Paper.s,  Misc.  No.  2  (1S9S)  G-9088,  p.  126. 

WiLS.lNT.L.— 6 


82  PROPEKTY   AND    DOMAIN.  (Cb.  3 

(b)  Title  to  domain  may  be  acquired  by  prescription  through 
uninterrupted  and  uncontested  possession  going  be3^ond  mem- 
ory. 

The  Roman  law  idea  of  "usucapio,"  that  long-continued  use 
of  real  property  became  transmuted  into  ownership,  strongly 
influenced  the  early  writers.^*'  On  admission  to  the  family  of 
nations  a  previously  existing  state  is  usually  regarded  as  hav- 
ing that  territorial  domain  of  which  it  has  had  long  possession 
and  such  other  domain  as  was  within  its  efifective  control  at  the 
time  of  admission ;  e.  g.,  Japan  was  admitted  with  the  islands 
over  which  it  had  long  had  dominion  and  with  Formosa,  which 
it  had  obtaind  from  China  in  1805.  This  immemorial  prescrip- 
tion, by  which  de  facto  possession  was  converted  into  de  jure 
possession,  has  been  modified  by  the  introduction  of  conven- 
tional periods  as  sufficient  to  constitute  possession. ^^  The 
length  of  the  necessary  period  has  not  been  defined.  Volun- 
tary abandonment  or  dereliction  by  the  original  possessor  gives 
to  the  new  possessor  a  title  by  occupation,  which  may  be 
strengthened  by  prescription. 

(c)  Accretion  is  the  addition  to  the  land  area  of  a  state 
through  the  operation  of  natural  or  artificial  means.  The  ad- 
dition to  the  land  may  be  by  alluvium,  as  when  new  deposits  of 
soil  are  thrown  above  the  water,  or  by  dereliction,  when  the 
water  subsides  so  as  to  leave  a  greater  exposed  area.  Deltas  at 
the  mouths  of  rivers  through  accretion  frequently  add  much 
to  the  territorial  domain.  The  territorial  domain  may  also  be 
enlarged  through  the  construction  of  breakwaters,  dykes,  or 
other  artificial  extensions  of  the  land  area  of  the  state.  Accre- 
tions, whether  natural  or  artificial,  within  the  boundaries  of  a 
state,  belong  to  that  state. 

(d)  Conquest  is  the  forcible  acquisition  of  territory,  and  is 

10  Grotius,  lib.  II,  C,  lY,  ix. 

11  The  rules  for  determining  the  disputed  boundary  between  Brit- 
ish Guiana  and  Venezuela,  adopted  in  1897,  provide:  "Adverse 
holding  or  prescription  during  a  period  of  fifty  years  shall  make  a 
good  title.  The  arbitrators  may  deem  exclusive  political  control  of  a 
district,  as  well  as  actual  settlement  thereof,  sufficient  to  constitute 
adverse  holding  or  to  make  title  by  prescription."  Foreign  Relations 
U.  S.,  1896,  p.  254. 


§  28)  ACQUISITION    OF   TERRITORIAL    DOMAIN.  83 

regarded  as  an  incident  of  national  sovereignty.^^  "Conquer- 
ed territory,  however,  is  usually  held  as  a  mere  military  occupa- 
tion until  the  fate  of  the  nation  from  which  it  is  conquered  is 
determined ;  but  if  the  nation  is  entirely  subdued,  or  in  case 
it  be  destroyed  and  ceases  to  exist,  the  right  of  occupation  be- 
comes permanent,  and  the  title  vests  absolutely  in  the  conqueror. 
Complete  conquest,  by  whatever  mode  it  may  be  perfected,  car- 
ries with  it  all  the  riglits  of  the  former  government ;  or,  in  oth- 
er words,  the  conqueror,  by  the  completion  of  his  conquest,  be- 
comes the  absolute  owner  of  the  property  conquered  from  the 
enemy,  nation,  or  state."  ^^ 

(e)  Cession,  the  transfer  of  the  domain  of  one  state  to  an- 
other state,  has  been  very  common  in  international  practice. 
The  form  and  conditions  of  cession  have  varied  greatly.  There 
may  be  cession  as  a  result  of  war,  or  cession  by  gift,  sale,  ex- 
change, or  other  international  act.  The  treaty  of  cession  us- 
ually prescribes  the  conditions  under  which  the  transfer  is 
made,  and  unless  otherwise  agreed  upon  a  treaty  of  cession  is 

12  Church  of  .Tesus  Christ  of  Latter-Day  Saints  v.  United  States, 
13G  U.  S.  42,  10  Sup.  Ct.  792,  34  L.  Ed.  478. 

13  "The  title  by  conquest  is  acquired  and  maintained  by  force. 
The  conqueror  prescribes  its  limits.  Humanity,  however,  acting  on 
public  opinion,  has  established,  as  a  general  rule,  that  the  conquered 
shall  not  be  wantonly  oppressed,  and  that  their  condition  shall  re- 
main as  eligible  as  is  compatible  with  the  objects  of  the  conquest. 
Most  usually  they  are  incorporated-  with  the  victorious  nation,  and 
become  subjects  or  citizens  of  the  government  with  which  they  are 
connected.  The  new  and  old  members  of  the  society  mingle  with 
each  other,  the  distinction  between  them  is  gradually  lost,  and  they 
make  one  people.  Where  this  incorporation  is  practicable,  humanity 
demands,  and  a  wise  policy  requires,  that  the  rights  of  the  conquered 
to  property  should  remain  -unimpaired,  that  the  new  subjects  should 
be  governed  as  equitably  as  the  old,  and  that  confidence  in  their  se- 
curity should  gradually  banish  the  painful  sense  of  being  separated 
from  their  ancient  connections  and  united  by  force  to  strangers." 
Johnson  v.  Mcintosh,  8  Wheat.  543,  5  L.  Ed.  681. 

That  inhabitants  should  be  secure  in  their  liberty  and  property 
on  transfer  of  sovereignty  is  "but  the  recognition  of  modern  usages 
of  civilized  nations,  which  have  acquired  the  force  of  law  even  in 
the  case  of  an  absolute  and  unqualified  conquest  of  an  enemy's 
country."  United  States  v.  De  Repentigny,  5  Wall.  211,  18  L.  Ed. 
627;  United  States  v.  Huckabee,  16  Wall.  414,  21  L.  Ed.  457. 


84  PROPERTY  AND   DOMAIN.  (Ch.  3 

binding  from  the  date  of  signing.'^  Spain  in  1898  ceded  the  is- 
land of  Porto  Rico  to  the  United  States  as  a  result  of  war. 
Gift  of  territory  was  common  in  the  early  days,  when  the  ter- 
ritory of  the  state  was  often  regarded  as  the  personal  property 
of  the  ruler,  as  when  the  Emperor  Charles  V  conferred  the 
Austrian  provinces  on  Ferdinand.  Spain  ceded  the  Philippine 
Islands  to  the  United  States  in  1898  for  $20,000,000.^^     In 


14  Chief  Justice  Marshall  said: 

"The  sovereign  who  acquires  au  inhabited  territory  acquires  full 
dominion  over  it ;  but  this  dominion  is  never  supposed  to  devest  the 
vested  rights  of  individuals  to  property."  Delassus  v.  United  States 
(1835)  9  Pet.  117.  9  L.  Ed.  71 ;  United  States  v.  De  la  Maza  Arre- 
dondo,  G  Pet.  G91,  8  L.  Ed.  547 ;  United  States  v.  Percheman,  7  Pet. 
51,  8  L.  Ed.  604 ;  Strother  v.  Lucas,  12  Pet.  410,  9  L.  Ed.  1137 ;  Davis 
v.  Concordia  Parish,  9  How.  280,  13  L.  Ed.  138. 

15  "By  the  third  article  of  the  treaty  Spain  ceded  to  the  United 
States  'the  archipelago  known  as  the  Philippine  Islands,'  and  the 
United  States  agreed  to  pay  Spain  the  sum  of  $20,000,000  within 
three  months.  The  treaty  was  ratified.  Congress  appropriated  the 
money.  The  ratification  was  proclaimed.  The  treaty  making  pow- 
er, the  executive  power,  the  legislative  power,  concurred  in  the  com- 
pletion of  the  transaction. 

"The  Philippines  thereby  ceased,  in  the  language  of  the  treaty, 
'to  be  Spanish.'  Ceasing  to  be  Spanish,  they  ceased  to  be  foreign 
country.  They  came  under  the  complete  and  absolute  sovereignty 
and  dominion  of  the  United  States,  and  so  became  territory  of  the 
United  States  over  which  civil  government  could  be  established. 
The  result  was  the  same,  although  there  was  no  stipulation  that 
the  native  inhabitants  should  be  incorporated  into  the  body  politic, 
and  none  securing  to  them  the  right  to  choose  their  nationality. 
Their  allegiance  became  due  to  the  United  States,  and  they  be- 
came entitled  to  its  protection."'  The  Diamond  Rings,  183  U.  S. 
176,  22  Sup.  Ct.  59,  46  D.  Ed.  138.  See,  also,  De  Lima  v.  Bidwell, 
182  U.  S.  1.  21  Sup.  Ct.  743,  45  L.  Ed.  1041;  Dooley  v.  United 
States,  182  U.  S.  222,  21  Sup.  Ct.  762,  45  L.  Ed.  1074;  Downes  v. 
Bidwell,  182  U.  S.  244,  21  Sup.  Ct.  770,  45  L.  Ed.  1088. 
On  February  14,  1899,  it  was  resolved  by  Congress: 
"That  by  ratification  of  the  treaty  of  peace  with  Spain  it  is  not 
intended  to  incorporate  the  inhabitants  of  the  Philippine  Islands  Into 
citizenship  of  the  United  States,  nor  is  it  intended  to  permanently 
annex  said  islands  as  an  integral  part  of  the  territory  of  the  United 
States;  but  it  is  the  intention  of  the  United  States  to  establish 
on  said  islands  a  government  suitable  to  the  wants  and  conditions 
of  the  inhabitants  of  said  islands  to  prepare  them  for  local  self- 
government,    and    in   due    time    to    make   such    disposition   of  said 


§  29)  MARITIME    AND   FLUVIAL    DOMAIN.  85 

1890  Germany  recognized  a  British  protectorate  over  Zanzibar 
and  Pemba,  and  in  return  Great  Britain  ceded  to  Germany  the 
island  of  Heligoland  in  the  North  Sea.  A  state  may  cede  its 
own  domain,  in  order  to  become  a  part  of  another  state,  as  in 
the  case  of  the  annexation  of  the  Republic  of  Hawaii  to  the 
United  States  in  1898.^* 


MARITIME   AND   FLUVIAI.   DOMAIN. 

29.  Maritime  and  fluvial  domain  includes  tlie  water  area 
Avithin  the  boundaries  of  a  state  and  xritliin  conven- 
tional limits  of  its  shores. 

The  Roman  Law  early  provided  that  the  aerial,  maritime, 
and  fluvial  domain  was  of  a  less  absolute  character  than  terri- 
torial domain,  stating  that,  unlike  territory,  the  use  of  such 
things  is  common  to  mankind  under  certain  limitations.^^ 

Domain  over  certain  water  area  is  incident  to  the  possession 
of  the  territorial  domain,  and  passes  to  the  holder  of  the  land, 
though  the  sea  and  land  are  regarded  as  distinct  in  Great  Brit- 
ain.^* 

islands  as  will  best  promote  the  interests  of  the  United  States  and 
the  inhabitants  of  said  islands." 

16  For  relations  between  United  States  and  Hawaii,  1820  to  1893, 
see  Foreign  Relations  U.  S.,  1894,  Appendix  II. 

17  "Et  quidem  naturali  jure  communia  sunt  omnium  hjec,  aer, 
aqua  profluens,  et  mare  et  per  hoc  litora  maris.  Nemo  igitur  ad 
litus  maris  accedere  prohibetur,  dum  tamen  villis  et  monumentis  et 
a?dificiis  abstineat:  quia  non  sunt  juris  gentium,  sicut  et  mare." 
Digest,  1,  8,  2,  I. 

18  MoUoy  maintains  that:  "The  right  to  the  sea  ariseth  not 
from  the  possession  of  the  shores ;  for  the  sea  and  land  make  distinct 
territories,  and  by  the  laws  of  England,  the  land  is  called  the  realm, 
but  the  sea  the  dominion ;  and  as  the  loss  of  one  province  doth  not 
infer  that  the  prince  must  resign  up  the  rest,  so  the  loss  of  the 
land  territory  doth  not  by  concomitancy  argue  the  loss  of  the  adja- 
c-ent  sea."    De  Jure  Martino,  c.  5. 

In  the  discussion  as  to  relative  rights  of  parties  to  minerals  under 
the  sea  above  and  below  low-water  mark  in  the  sea  adjoining  Corn- 
wall, there  was  no  question  that  the  land  under  the  sea  was  within 
the  domain  of  Great  Britain  and  "a  part  of  the  soil  and  territorial 
possessions  of  the  Crown."  See  remarks  thereon  In  Regina  v.  Keyn, 
L.  R.  2  Ex.  Div.  63,  121,  155,  199. 


86  PROPERTY   AND   DOMAIN.  (Cll.  3 

(a)  Waters  wholly  within  the  territorial  domain  of  a  state 
are  under  the  exclusive  dominion  of  the  state.  This  applies 
particularly  to  inland  seas,  lakes,  and  the  rivers  discharging 
into  them. 

(b)  Rivers  flowing  wholly  within  the  territorial  domain  of 
a  state  are  regarded  as  the  projjerty  of  that  state.  Domain  in 
rivers  which  form  the  boundary  line  of  two  states,  in  default 
of  other  evidence,  extends  to  the  middle  of  the  navigable  chan- 
nel, or  thalweg.  Title  to  the  entire  river  may  be  acquired,  as 
in  cases  of  territorial  domain.^® 

(c)  The  coast  waters  of  the  open  sea  to  the  distance  of  three 
miles  from  the  low-water  mark  are  for  certain  purposes  with- 
in the  maritime  domain.  The  title  to  this  domain  goes  with 
the  title  to  the  coast.  The  three-mile  limit  of  domain  has  grad- 
ually received  favor,  though  much  more  extended  claims  have 
been  made.^° 

in  "WTien  a  great  river  is  the  boundary  between  two  nations  or 
states,  if  tbe  original  property  is  in  neither,  and  there  be  no  conven- 
tion respecting  it,  each  holds  to  the  middle  of  the  stream.  But  when, 
as  in  this  case,  one  state  is  the  original  proprietor,  and  grants  the 
territorj-  on  one  side  only,  it  retains  the  river  within  its  own  domain, 
and  the  newly-created  state  extends  to  the  river  only.  The  river, 
however,  is  its  boundary,  *  *  *  Even  when  a  state  retains  its 
dominion  over  a  river  which  constitutes  the  boundary  between  itself 
and  another  state,  it  would  be  extremely  inconvenient  to  extend  its 
dominion  over  the  land  on  the  other  side,  which  was  left  bare  by 
the  receding  of  the  water.  And  this  inconvenience  is  not  less  where 
the  rising  and  falling  is  annual  than  where  it  is  diurnal.  Wherever 
the  river  is  a  boundary  between  states,  it  is  the  main,  the  permanent, 
river  which  constitutes  that  boundary;  and  the  mind  will  find  itself 
embarrassed  with  unsurmountable  difficulty  in  attempting  to  draw 
any  other  line  than  the  low-water  mark."  Handly  v.  Anthony,  5 
W-hent.  374,  5  L.  Ed.  113. 

2  0  Solden,  Mare  Clausum,  published  in  1035,  opposed  Grotius'  Mare 
Liberum,  published  1G09.  and  maintained  that  British  sovereignty 
over  the  coast  sea  extended  even  to  the  North  Pole,  and  that  the 
sea  might  properly  be  private  propert.v.  INIany  writers  also  followed 
Selden's  claim  that  the  fundus  maris,  or  the  sea  bottom,  was  a  "part 
of  the  waste  and  demesnes  and  dominions  of  the  King  of  England." 
Till  the  decision  in  Regina  v.  Keyn  [1876]  L.  R.  2  Ex.  Dlv.  G3.  the 
British  limits  of  maritime  domain  were  subject  to  dispute.  This 
decision  was  followed  by  an  act  of  Parliament,  "Territorial  Waters 
Jurisdiction  Act,  1878,"  which  provided:     "The  territorial  waters  of 


§  30)  AERIAL   DOMAIN.  87 

(d)  Gulfs,  bays,  and  other  arms  of  the  sea,  whose  openings 
toward  the  sea  do  not  exceed  six  miles  in  width,  are  uni- 
formly regarded  as  within  the  maritime  domain  of  the  state 
which  holds  the  coast  land.  There  are  various  claims  to  more 
extended  domain. 

ATRIAL  DOMAIN. 

30.    Aerial  domain  inclndes   tlie  atmospliere   above  tlie  terri- 
torial, maritime,  and  fluvial  domain  of  a  state. 

The  dominion  over  the  air  has  received  consideration  for 
many  years.  Some  would  date  the  discussion  from  the  first 
chapter  of  the  book  of  Genesis,  when  man  is  given  "dominion 
over  the  fish  of  the  sea  and  over  the  fowl  of  the  air."  Of  this 
Pufendorf  in  1672  says :  "We  cannot  conceive  any  supremacy 
and  rule  over  animals,  without  a  right  of  using  the  element 
which  they  inhabit,  according  as  the  nature  of  it  will  allow. 
Indeed,  mention  is  likewise  made  of  the  fowls  of  the  air,  yet 
since  we  cannot  move  and  support  ourselves  in  that  element 
alone,  therefore  we  are  unable  to  exercise  dominion  over  the 
air  any  further  than  we  can  reach  while  we  stand  on  the 
earth."  "^  Early  writers,  however,  recognize  certain  rights  in 
the  atmosphere,  as  the  right  to  the  wind  for  mills  depending 
upon  currents  of  air  for  power,  as  later  mills  depended  upon 
the  force  of  water.  The  early  writers  usually  referred  to  the 
Roman  law  principle  that  by  the  law  of  nature  the  air,  run- 
ninof  water,  the  sea,  and  shores  of  the  sea  were  common  to 
mankind.- - 

Her  Majesty's  dominions,  in  reference  to  the  sea,  means  such  part 
of  the  sea  adjacent  to  the  coast  of  the  United  Kingdom,  or  the  coast 
of  some  other  part  of  Her  Majesty's  dominions,  as  is  deemed  by  in- 
ternational law  to  be  within  the  territorial  sovereignty  of  Her 
^Majesty ;  and  for  the  purpose  of  any  offense  declared  by  this  act 
to  be  within  the  jurisdiction  of  the  Admiral,  any  part  of  the  open 
sea  within  one  marine  league  of  the  coast  measured  from  low-water 
mark  shall  be  deemed  to  be  open  sea  within  the  territorial  waters 
of  Her  Majesty's  dominions." 

21  Pufendorf,  The  Law  of  Nature  and  Nations  (Kennet's  Trans.) 
bli.  ly,  c.  V,  §  V. 

2  2  Institutes,  lib.  II,  tit.  I,  1.  See,  also,  Nys,  Droit  et  Aerostats 
Rev.  de  Droit  Int.  et  de  Leg.  Comparee  (2e  serie)  IV,  p.  510. 


88  PROPERTY   AND    DOMAIN.  (Cll.  3 

The  atmosphere  above  the  state  is  within  its  domain,  and 
this  is  generally  recognized  in  the  unquestioned  appropriation 
of  the  space  above  the  state  area  for  the  erection  of  buildings, 
monuments,  bridges,  etc.,  as  well  as  in  the  ordinary  use  of  the 
atmosphere.  It  would  not  be  reasonable  to  attribute  to  a  state 
property  rights  in  the  atmosphere.  Such  rights  would  neither 
be  consistent  with  the  nature  of  the  atmosphere  itself  nor  with 
the  rights  of  others.  Yet,  with  the  increasing  use  of  the  at- 
mosphere for  aerial  transportation  both  of  messages  and  per- 
sons, it  is  evident  that  it  cannot  be  regarded  as  in  all  respects 
res  nullius. 

With  the  development  of  modern  war  balloons  and  of  wire- 
less telegraphy,  there  would  naturally  be  a  corresponding  de- 
velopment of  dominion  over  the  atmosphere.  The  war  balloons 
would  bear  a  close  resemblance  to  war  ships  in  certain  re- 
spects;  e.  g.,  the  war  ship  might  sink  if  its  buoyancy  were  re- 
duced through  the  entrance  of  water,  while  the  balloon  might 
sink  if  its  buoyancy  were  reduced  through  the  entrance  of  air. 
In  time  of  peace,  unregulated  use  of  the  atmosphere  by  wire- 
less telegraphy  might  destroy  the  efficiency  of  this  means  of 
communication.  Photographing  of  or  observations  upon  for- 
tifications from  any  means  of  aerial  transportation  would  be 
no  less  objectionable,  because  made  from  above,  rather  than  on 
the  surface  of  a  state.  States  have  already  begun  to  make 
agreements  upon  the  subject  of  wireless  telegraphy.  The  In- 
stitute of  International  Law  at  its  session  in  1906  declared 
that,  while  the  air  was  free,  a  state  had  the  right  to  regulate 
the  use  of  the  atmosphere  above  its  territorial  and  maritime 
domain  for  the  transmission  of  wireless  messages,  whether 
from  public  or  private  stations  on  land,  or  sea,  or  in  the  air.^^ 

The  United  States  has  in  recent  years  asserted  that  the  at- 
mosphere was  within  the  domain  of  the  state. 

In  the  case  of  Georgia  v.  Tennessee  Copper  Co.,  in  190G, 
the  Supreme  Court  of  the  United  States  said  that,  while  the 
state  itself  owned  very  little  of  the  property  alleged  to  have 
been  damaged  by  the  discharge  of  gases  into  the  air,  yet  in  its 
capacity  of  quasi  sovereign  "the  state  has  an  interest,  independ- 

23  21  Annuaire  de  I'lnstitut,  p.  S27.  See  post,  p.  122,  note  52,  chap- 
ter IV. 


•  §  30)  AERIAL   DOMAIN.  89 

ent  of  and  behind  the  titles  of  its  citizens,  in  all  the  earth  and 
air  within  its  domain.  It  has  the  last  word  as  to  whether  its 
mountains  shall  be  stripped  of  their  forests  and  its  inhabitants 
shall  breathe  pure  air."  "* 

In  1907  the  Supreme  Court  of  the  United  States  said 
that:  "It  is  recognized  that  the  state,  as  quasi  sovereign  and 
representative  of  the  interests  of  the  public,  has  a  standing  in 
court  to  protect  the  atmosphere,  the  water,  and  the  forests 
within  its  territory,  irrespective  of  the  assent  of  the  private 
owners  of  the  land  most  immediately  concerned."  ^^ 

The  German  Civil  Code,  which  came  into  effect  January  1, 
1900,  announces  certain  principles  in  regard  to  the  rights  of 
the  owner  of  land  in  the  atmosphere : 

"904.  The  owner  of  a  thing  has  not  the  right  to  prohibit  the 
mterference  of  another  with  the  same,  if  the  interference  is 
necessary  to  avert  a  present  danger  and  the  threatened  damage 
compared  to  the  damage  arising  to  the  owner  from  the  inter- 
ference is  disproportionatel}^  great.  The  owner  may  demand 
indemnity  for  the  damage  to  him. 

"905.  The  right  of  the  owner  of  a  piece  of  land  extends  to 
the  space  above  the  surface  and  to  the  earth  under  the  surface. 
However,  the  owner  cannot  prohibit  interferences  which  take 
place  at  such  height  or  depth  that  he  has  no  interest  in  their  ex- 
clusion. 

"906.  The  owner  of  a  piece  of  land  cannot  prohibit  the  in- 
coming of  gases,  steam,  odors,  smoke,  soot,  heat,  noises,  shocks 
and  similar  interference  coming  from  another  piece  of  land  in 
so  far  as  the  interference  does  not,  or  only  inconsiderably,  af- 
fect the  use  of  his  land,  or  so  far  as  it  is  caused  by  a  use  of  the 
other  piece  of  land,  which  under  the  local  condition  is  usual 
with  land  in  such  situation.  The  introduction  through  a  spe- 
cial channel  is  not  permissible."  '° 

Other  codes  enunciate  similar  principles,  showing  that  the 
owner  of  the  land  has  a  right  to  demand  that  the  use  of  the  at- 
mosphere above  the  land  may  not  be  to  his  serious  detriment. 


24  206  U.  S.  230,  27  Sup.  Ct.  618,  51  L.  Ed.  1038. 

25  Hudson  County  Water  Co.  v.  McCarter,  209  U.  S.  349,  28  Sup. 
Ct.  529.  52  L.  Ed.  828. 

2  6  Loewy,  German  Civil  Code,  Nos.  904-906. 


90  PROPERTY   AND    DOMAIN.  (Ch.  3 

The  general  drift  of  opinion  is  toward  the  recognition  that 
the  right  of  aerial  dominion  is  coterminous  with  the  territorial 
jurisdiction  of  a  state,  and  that  to  the  extent  a  state  is  ahle  to 
enforce  its  jurisdiction  within  such  area  it  must  he  recognized, 
provided  it  is  not  an  infringement  of  the  rights  of  other 
states."^ 

2  7  See  2  Holtzendorff,  Handbuch,  §  4G;  1  Rivier.  Droit  de  Gens, 
p.  140;  1  Nys,  Droit  lut  p.  523;  4  A.  J.  I.  L.  Baldwin,  Law  of  the 
Air  Sliip,  p.  95;   Id.,  Kuhn,  Begiuuiugs  of  an  Aerial  Law,  p.  lOS. 


§  31)  JURISDICTION.  91 

CHAPTER  IV. 

JURISDICTION. 

31.  Jurisdiction. 

32.  Jurisdiction  oyer  Territory  and  Property — General. 

33.  Joint  Jurisdiction. 

34.  Leased  Territory. 

35.  Maritime  and  Fluvia]   Jurisdiction— Marginal  Seas. 

36.  Straits. 

37.  Gulfs  and  Bays. 

38.  Inland  Seas  and  Lalies. 

39.  Rivers. 

40.  Navigation. 

41.  Fisheries. 

42.  Vessels. 

43.  Aerial  Jurisdiction. 

44.  Jurisdiction  over  Persons — Nationals. 

45.  Acquisition  of  Nationality. 

46.  Expatriation. 

47.  Protection  of  Nationals. 

48.  Aliens. 

49.  Extradition. 

50.  Exemptions  from  Jurisdiction. 

51.  Extraterritorial  Jurisdiction. 

52.  Servitudes. 

JURISDICTION. 

31.  Jurisdiction,  the  right  to  exercise  state  authority,  extends 
in  general  to  all  persons  and  things  within  the  hound- 
aries  of  the  state,  and,  conditioned  by  the  rights  of 
other  states,  to  the  property  and  subjects  of  the  state 
beyond  its  boundaries.i 

Jurisdiction,  the  right  to  exercise  state  authority,  may  have 
its  basis  in  property  right,  in  the  right  of  domain,  or  in  pohtical 

1  Mr.  Justice  Story  said  in  1S22:  "It  may  therefore  be  justly 
laid  down  as  a  general  proposition  that  all  persons  and  property 
within  the  territorial  jurisdiction  of  a  sovereign  are  amenable  to 
the  jurisdiction  of  himself  or  his  courts,  and  that  the  exceptions  to 
this  rule  are  such  only  as  by  common  usage  and  public  policy  have 
been  allowed,  in  order  to  preserve  the  peace  and  harmony  of  nations, 
and  to  regulate  their  intercourse  in  a  manner  best  suited  to  their 


92  JURISDICTION.  (Ch.  4 

relationship,  and  may  extend  where  property  or  domain  does 
not  exist. 

In  general,  jurisdiction  may  be  classified  as  (a)  jurisdiction 
over  territory  and  property;  (b)  maritime  and  fluvial  jurisdic- 
tion;   (c)  aerial  jurisdiction;  and  (d)  jurisdiction  over  persons. 

JURISDICTION   OVER  TERRITORY  AND  PROPERTY 
— GENERAL. 

32.  As  a  general  principle  the  jurisdiction  of  a  state  is  ex- 
clusive over  its  own  land  area,  and  over  all  property 
within  its  boundaries,  and  over  its  ow^n  and  the  prop- 
erty of  its  nationals  w^hich  is  not  w^ithin  the  bound- 
aries of  another  state. 

Chief  Justice  Marshall  in  1812  said: 

"The  jurisdiction  of  the  nation  within  its  own  territory  is 
necessarily  exclusive  and  absolute.  It  is  susceptible  of  no  lim- 
itation not  imposed  by  itself.  Any  restriction  upon  it,  deriving 
validity  from  an  external  source,  would  imply  a  diminution  of 
its  own  sovereignty  to  the  extent  of  the  restriction,  and  an  in- 
vestment of  that  sovereignty  to  the  same  extent  in  that  power 
which  could  impose  such  restrictions. 

"All  exceptions,  therefore,  to  the  full  and  complete  power  of 
a  nation  within  its  own  territories,  must  be  traced  up  to  the 
consent  of  the  nation  itself.  They  can  flow  from  no  other 
legitimate  source. 

"This  consent  may  be  either  expressed  or  implied.  In  the 
latter  case,  it  is  less  determinate,  exposed  more  to  the  uncer- 
tainties of  construction,  but,  if  understood,  not  less  obliga- 
tory." 2 

As  against  all  other  states,  a  state  is  regarded  as  proprietor 
of  the  land  within  its  boundaries.  A  state  may  not  exercise  any 
act  of  state  authority  upon  the  land  of  a  foreign  sovereign 
without  permission ;  e.  g.,  may  not  march  troops  upon  foreign 
land  even  in  time  of  peace. 

A  state  has  exclusive  jurisdiction  over  its  property  and  the 

dignity  and  rights."     The  Santissima  Trinidad,  7  Wheat.  283,  5  L. 
Ed.  454. 

2  Schooner  Exchange  v.  McFaddon,  7  Cranch,  116,  3  L.  Ed.  287. 


§  33)       JURISDICTION  OVER  TERRITORY  AND  PROPERTT.  93 

property  of  its  subjects  outside  the  boundaries  of  any  other 
state.  This  jurisdiction  extends  over  property  throughout  its 
own  domain  and  throughout  the  extent  of  space  which  is  with- 
in the  dominion  of  no  state,  as  on  the  high  seas  for  property 
under  its  own  flag. 

This  jurisdiction  over  property  extends  to  patents,  copy- 
rights, etc.,  which  ma)'-  be  made  the  subject  of  international 
agreement.  The  jurisdiction  over  property  and  territory  im- 
pHes  the  right  to  protect  territory  and  property  by  such  means 
as  may  be  necessary. 

SAME— JOINT    JURISDICTION. 

33.  In  recent  years  joint  jurisdiction  lias  been  in  certain  in- 
stances exercised  by  t^vo  or  more  states  in  the  same 
area  in  accord  iiritli  conventional  agreements. 

The  exercise  of  joint  jurisdiction — condominium — does  not 
necessarily  imply  the  possession  of  sovereignty  by  those  states 
exercising  jurisdiction.  The  local  state  possessing  sovereignty 
may  or  may  not  itself  be  a  party  to  the  agreement.  The  au- 
thority exercised  is  specified  in  the  agreement,  and  an  obliga- 
tion corresponding  to  the  right  is  generally  assumed,  unlike 
the  usual  practice  in  case  of  assumption  of  a  sphere  of  in- 
fluence. 

The  condominium  would  naturally  be  based  on  conventional 
agreement,  in  order  that  there  might  not  be  conflict  of  juris- 
diction. The  exercise  of  power  may  cease  with  the  joint  sanc- 
tion of  the  appointment  of  an  official  to  represent  the  states  in 
all  matters,  or  the  jurisdiction  over  specified  matters  may  be 
retained  by  each  state. 

By  a  general  act,  concluded  by  the  United  States,  Germany, 
and  Great  Britain  in  1889,  and  remaining  in  force  till  1899,  ar- 
ticle I : 

"It  is  declared  that  the  Islands  of  Samoa  are  neutral  terri- 
tory in  which  the  citizens  and  subjects  of  the  three  signatory 
powers  have  equal  rights  of  residence,  trade  and  personal  pro- 
tection. The  three  powers  recognize  the  independence  of  the 
Sainoan  government  and  the  free  right  of  the  natives  to  elect 
their  chief  or  king  and  choose  their  form  of  government  ac- 


94  JURISDICTION.  (Ch.  4 

cording  to  their  own  laws  and  customs.  Neither  of  the  powers 
shall  exercise  any  separate  control  over  the  islands  or  the  gov- 
ernment thereof. 

"It  is  further  declared,  with  a  view  to  the  prompt  restora- 
tion of  peace  and  good  order  in  the  said  islands,  and  in  view 
of  the  difficulties  which  would  surround  an  election  in  the  pre- 
sent disordered  condition  of  their  government,  that  Malietoa 
Laupepa,  who  was  formerly  made  and  appointed  king  on  the 
12th  day  of  July,  1S81,  and  was  so  recognized  by  the  three 
powers,  shall  again  be  so  recognized  hereafter  in  the  exercise 
of  such  authority,  unless  the  three  powers  shall  by  common  ac- 
cord otherwise  declare ;  and  his  successor  shall  be  duly  elected 
according  to  the  laws  and  customs  of  Samoa." 

This  general  act  provides  for  the  establishment  of  a  "Su- 
preme Court  of  Justice  for  Samoa,"  with  extended  powers  for 
taxation  and  other  matters  of  administration. 

By  an  agreement  of  January  19,  1899  between  Great  Britain 
and  Egypt  as  to  the  condominium  over  Soudan : 

"II.  The  British  and  Egyptian  flags  shall  be  used  together 
on  land  and  water  throughout  the  Soudan.     *     *     * 

"III.  The  supreme  military  and  civil  command  in  the  Soudan 
shall  be  vested  in  one  officer,  termed  the  'Governor  General  of 
the  Soudan.'  He  shall  be  appointed  by  Khedviral  decree  on  the 
recommendation  of  Her  Britannic  Majesty's  government."  ^ 

The  Convention  of  October  20,  1906  between  Great  Britain 
and  France  concerning  the  New  Hebrides  is  one  of  the  most 
detailed  statements  as  to  the  exercise  of  joint  jurisdiction.  The 
general  provisions  state : 

"Article  I.  Status — 1.  The  group  of  the  New  Hebrides,  in- 
cluding the  Banks  and  Torres  Islands,  shall  form  a  region  of 
joint  influence,  in  which  the  subjects  and  citizens  of  the  two 
signatory  powers  shall  enjoy  equal  rights  of  residence,  per- 
sonal protection,  and  trade,  each  of  the  two  powers  retaining 
jurisdiction  over  its  subjects  or  citizens,  and  neither  exercis- 
ing a  separate  control  over  the  group. 

"2.  The  subjects  or  citizens  of  other  powers  shall  enjoy  the 
same  rights  and  shall  be  subject  to  the  same  obligations  as 
British  subjects  or  French  citizens.  They  must  choose  within 

8  19  Br.  and  For.  State  Papers,  119. 


§  34)       JURISDICTION  OVER  TERRITORY  AND   PROPERTY.  95 

six  months  between  the  legal  systems  of  one  of  the  two  powers. 
Faihng  such  choice,  the  High  Commissioners  mentioned  in  ar- 
ticle II  or  their  delegates  shall  decide  under  which  system  they 
shall  be  placed. 

"3.  In  all  matters  not  contrary  to  the  provisions  of  the  pre- 
sent Convention  or  the  regulations  made  thereunder,  the  sub- 
jects and  citizens  of  the  two  signatory  powers  and  the  subjects 
and  citizens  of  other  powers  shall,  within  the  New  Hebrides, 
remain  subject  to  the  fullest  extent  to  the  laws  of  their  re- 
spective countries. 

"4.  The  two  signatory  powers  undertake  not  to  erect  forti- 
fications in  the  group  and  not  to  establish  penal  settlements  of 
any  kind." 

The  sixty-eight  articles  of  this  Convention  provide  with 
much  detail  for  the  condominium,  even  to  the  regulation  of  la- 
bor and  the  sale  of  liquors.* 


SAME— LEASED    TERRITORY. 

34.  Leased  territory,  xrhile  remaining  under  tlie  sovereignty 
of  the  lessor,  passes  witliin  the  jurisdiction  of  the 
lessee. 

Instances  of  leasing  territory  for  various  purposes  have  from 
time  to  time  occurred.  The  most  numerous  are  the  Chinese 
leases.    The  leases  have  usually  been  to  European  powers. 

The  lease  to  Germany  in  1897  states  that: 

"His  Majesty,  the  Emperor  of  China,  being  desirous  of  pre- 
serving the  existing  good  relations  with  His  Majesty,  the  Em- 
peror of  Germany,  and  of  promoting  an  increase  of  German 
power  and  influence  in  the  Far  East,  sanctions  the  acquire- 
ment, under  lease,  by  Germany  of  the  land  extending  for  100 
li  at  high  tide  (at  Kiaochow). 

"His  Majesty,  the  Emperor  of  China,  is  willing  that  German 
troops  should  take  possession  of  the  above-mentioned  territory 
at  any  time  the  Emperor  of  Germany  chooses.  China  retains 
her  sovereignty  over  this  territory,  and  should  she  at  any  time 

4  1  A.  J.  I.  Doc.  p.  179.  See,  also,  Politis,  Le  Condominium  Franco- 
Anglais  des  Nouvelles  Hebrides,  p.  32  et  seq. 


96  JURISDICTION.  (Ch.  4 

wish  to  enact  laws  or  carry  out  plans  within  the  leased  area  she 
shall  be  at  liberty  to  enter  into  negotiations  with  Germany  with 
reference  thereto:  Provided,  always,  that  such  laws  or  plans 
shall  not  be  prejudicial  to  German  interests.  Germany  may  en- 
gage in  works  for  the  public  benefit,  such  as  waterworks,  with- 
in the  territory  covered  by  the  lease,  without  reference  to 
China.  Should  China  wish  to  march  troops  or  establish  garri- 
sons therein,  she  can  only  do  so  after  negotiating  with  and  ob- 
taining the  express  permission  of  Germany. 

"II.  His  Alajesty,  the  Emperor  of  Germany,  being  desirous, 
like  the  rulers  of  certain  other  countries,  of  establishing  a  naval 
and  coaling  station  and  constructing  dockyards  on  the  coast  of 
China,  the  Emperor  of  China  agrees  to  lease  to  him  for  the 
purpose  all  the  land  on  the  southern  and  northern  sides  of 
Kiaochow  Bay  for  a  term  of  ninety-nine  years.  Germany  is  to 
be  at  liberty  to  erect  forts  on  this  land  for  the  defense  of  her 
possessions  therein. 

"III.  During  the  continuance  of  the  lease  China  shall  have 
no  voice  in  the  government  or  administration  of  the  leased  ter- 
ritory. It  will  be  governed  and  administered  during  the  whole 
term  of  ninety-nine  years  solely  by  Germany,  so  that  the  pos- 
sibility of  friction  between  the  two  powers  may  be  reduced  to 
the  smallest  magnitude.  *  *  *  Germany  shall  not  cede  the 
territory  leased  to  any  other  power  than  China."  ^ 

Mr.  Conger,  Minister  to  China  in  1899,  reported  in  1899 : 

"I  have  conferred  with  the  English,  German,  Russian, 
French,  Spanish,  Netherlands,  and  Japanese  ministers  upon 
the  subject  and  all  of  them,  except  the  Japanese,  agree  that  the 
control  over  all  of  these  leased  ports  has,  during  the  existence 
of  the  lease,  passed  as  absolutely  away  from  the  Chinese  gov- 
ernment as  if  the  territory  had  been  sold  outright,  and  that 
they  are  as  thoroughly  under  jurisdiction  of  the  lessee  govern- 
ments as  any  portion  of  their  home  territory,  and  their  con- 
suls, accredited  to  China,  would  not  attempt  to  exercise  juris- 
diction in  any  of  said  ports. 

"The  Japanese  claim  that  sovereignty  is  too  important  a  mat- 
ter to  pass  thus  with  a  lease,  and  say  that  China  can,  if  she 
wishes,  surrender  jurisdiction  over  her  own  people;   but  they 

6  Foreign  Relations  U.  S.,  1900,  p.  383. 


§  35)  MARITIME    AND    FLUVIAL   JURISDICTION.  97 

do  not  agree  that  these  lessee  governments  shall  or  can  exer- 
cise jurisdiction  over  other  foreigners  in  the  leased  territory. 
However,  no  case  has  yet  arisen  for  them  to  test  the  matter."*^ 

The  Chinese  lease  of  Port  Arthur  to  Russia  in  1898  distinct- 
ly stated  that  it  was  "on  the  understanding  that  such  lease 
shall  not  prejudice  China's  sovereignty  over  this  territory," 
though  full  jurisdiction  over  the  territory  passed  to  Russia  and 
subsequently  to  Japan. 

In  the  Agreement  of  February,  1903,  between  the  United 
States  and  Cuba  for  the  lease  of  certain  coaling  and  naval  sta- 
tions to  the  United  States,  it  is  provided  that : 

"Article  III.  While  on  the  one  hand  the  United  States  rec- 
ognizes the  continuance  of  the  ultimate  sovereignty  of  the  Re- 
public of  Cuba  over  the  above-described  areas  of  land  and  wa- 
ter, on  the  other  hand  the  Republic  of  Cuba  consents  that  dur- 
ing the  period  of  the  occupation  by  the  United  States  of  said 
areas  under  the  terms  of  this  agreement  the  United  States 
shall  exercise  complete  jurisdiction  and  control  over  and  within 
said  areas,  with  the  right  to  acquire  (under  conditions  to  be 
hereafter  agreed  upon  by  the  two  governments)  for  the  pub- 
lic purposes  of  the  United  States  any  land  or  other  property 
therein  by  purchase  or  by  exercise  of  eminent  domain  with  full 
compensation  to  the  owners  thereof." 

The  terms  of  leases  usually  specify  the  powers  to  be  exer- 
cised by  the  lessee,  and  by  implication  other  powers  remain  in 
the  lessor.  In  all  these  cases  sovereignty  is  theoretically  re- 
tained by  the  lessor  state,  while  complete  jurisdiction  may  be 
Sfranted  to  the  lessee. 


MARITIME     AND     FLUVIAL    JURISDICTION— MAR- 
GINAL SEAS. 

35.    A  marine  league  from  the  shore  loiv-T^ater  mark  lias  long 
been  recognized  as  the  limit  of  maritime  jurisdiction. 

In  the  early  days  of  interstate  relationship  there  was  much 
controversy  over  the  limits  of  maritime  jurisdiction.  In  1702 
Bynkershoek  set  forth  the  reasonable  proposition  that  the  ter- 
ritorial power  should  end  where  the  effective  range  of  arms 

6  Id.   p.  385. 

WiLS.lNT.L. — 7 


98  JURISDICTION.  (Ch.  4 

ends.'^  At  this  time  the  range  of  guns  was  considered  about 
three  miles.  There  have  been  various  attempts  to  extend  this 
jurisdiction,  but  the  marine  league  is  still  generally  accepted 
for  ordinary  purposes.^  The  three-mile  limit  was  legalized  by 
the  British  Territorial  \\^aters  Jurisdiction  Act  of  1878,  was 
recognized  in  the  Suez  Canal  Convention  of  1888,  in  the  Fur 
Seal  Arbitration  of  1893,  and  in  the  Hay-Pauncefote  Treaty 
of  1901.  "Article  21  of  the  Russian  Prize  Law  provides:  'The 
right  of  making  prizes  is  recognized  only  in  the  open  seas.  As 
for  the  open  sea,  it  consists  of  waters  which  are  not  under  fire 
of  neutral  batteries,  or  three  sea  miles  from  the  neutral 
shores.'  "  ®  Kent  made  an  extreme  claim,  saying,  "All  that  can 
reasonably  be  asserted  is  that  the  dominion  of  the  sovereign  of 
the  shore  over  the  contiguous  sea  extends  as  far  as  is  requisite 
for  his  safety  and  for  some  lawful  end,"  and  says  that  "in  1793 
the  government  of  the  United  States  thought  they  were  entitled, 
in  reason,  to  as  broad  a  margin  of  protected  navigation  as  any 
nation  whatever,  though  at  that  time  they  did  not  positively  in- 
sist upon  more  than  the  distance  of  a  marine  league  from  the 
seashores ;  and  in  1806  they  thought  it  would  not  be  unreason- 
able, considering  the  extent  of  the  United  States,  the  shoalness 
of  their  coast,  and  the  natural  indication  furnished  by  the  well- 
defined  path  of  the  Gulf  Stream,  to  expect  an  immunity  from 
belligerent  warfare  for  the  space  between  that  limit  and  the 
American  shore."  ^°     The  Institute  of  International  Law  dis- 


7  "Potestatem  terrse  finiri,  ubi  fiiiitur  armorum  vis."  De  Domino 
Maris  (1702)  c.  2. 

8  "There  can  be  no  possible  doubt  that  the  water  below  low-water 
mark  is  part  of  the  high  seas.  But  it  is  equally  beyond  question 
that  for  certain  purposes  every  country  may.  by  the  common  law  of 
nations,  legitimately  exercise  jurisdiction  over  that  portion  of  the 
high  seas  which  lies  within  the  distance,  of  three  miles  from  its 
shores.  Whether  this  limit  was  determined  with  reference  to  the 
supposed  range  of  cannon,  on  the  principle  that  the  jurisdiction  is 
measured  by  the  power  of  enforcing  it,  is  not  material ;  for  it  is 
clear,  at  any  rate,  that  it  extends  to  the  distance  of  three  miles, 
and  that  many  instances  may  be  given  of  the  exercise  of  such  juris- 
diction by  various  nations."  Screw  Collier  Ck).  v.  Schurmans,  1 
Johnson  &  H.  Ch.  193. 

9  Foreign  Relations  U.  S.,  1SS6,  p.  957. 

10  Int.  Law  (Abdy's  Ed.)  p.  112. 


§  36)  MARITIME   AND    FLUVIAL   :.UP13WcnON  *99 

cussed  the  question  of  maritime  jurisdiction  at  great  length 
at  its  session  in  1894,  and  the  general  opinion  was  favorable 
to  an  extension  of  the  three-mile  limit.  A  large  majority  de- 
clared in  favor  of  a  six-mile  limit,  with  a  right  of  extension  by 
declaration  of  a  neutral  state  in  time  of  war  to  the  limit  of  ef- 
fective control  by  guns  on  shore.  Since  1894  there  has  been  a 
tendency  to  return  to  the  three-mile  limit  of  jurisdiction,  be- 
cause the  more  extended  jurisdiction  would  carry  correspond- 
ing obligations  to  exercise  authority,  a  burden  which  might 
outweigh  the  advantages,  particularly  in  time  of  war. 

Within  the  three-mile  limit  exclusive  jurisdiction  over  fish- 
eries and  other  undertakings  is  generally  admitted. 

A  wider  special  jurisdiction  is  often  claimed,  and  generally 
admitted,  for  purposes  of  administration  of  revenue,  fisheries, 
and  sanitary  regulations,  and  for  better  policing  of  a  coast. 
This  has  often  extended  to  ten  miles,  and  sometimes  to  twelve 
miles.  States  often  make  regulations  for  the  coast  trade,  limit- 
ing such  trade  to  vessels  flying  their  own  flag. 

SAME— STRAITS. 

36.    (a)   Tlie  rule  in  regard  to  marginal  seas  applies  to  straits 
-wbiicli  are  six  miles  or  more  in  ividth. 
(b)    Straits  less  than  six  miles  in  ividth  are  ivitliin  the  ju- 
risdiction of  the  shore  state  or  states. 

(a)  When  a  strait  is  six  miles  in  width,  if  the  same  state  has 
jurisdiction  over  both  shores,  the  strait  is  wholly  within  the  ju- 
risdiction of  that  state.  If  different  states  have  jurisdiction 
over  the  opposite  shores,  each  state  has  jurisdiction  to  the 
three-mile  limit.  Similar  jurisdiction  prevails  in  case  the  strait 
is  more  than  three  miles  in  width. 

(b)  When  straits  are  less  than  six  miles  in  width,  in  absence 
of  conventional  agreement,  each  shore  state  has  jurisdiction 
to  the  middle  of  the  navigable  channel. 

In  general,  it  may  be  said  that  the  claims  to  jurisdiction  of 
broad  straits  and  channels  which  were  formerly  made  seem  to 
have  been  surrendered.  Great  Britain  once  claimed  the  Bristol 
Channel,  St.  George's  Channel,  and  the  North  Channel  as  with- 
in her  territorial  jurisdiction,  and  some  eminent  writers,  such 


'iOO  JUUISDICTION.  (Cll.  4 

as  PhilHmore,  have  supported  this  claim ;  but  this  would  hard- 
ly be  maintained  since  the  Territorial  Waters  Jurisdiction  Act 
of  1878. 

Some  straits  have  been  made  the  subject  of  special  agree- 
ments. By  article  I  of  the  Convention  of  London  of  July  10, 
1841,  warships  were  excluded  from  the  Bosphorus  and  Dar- 
danelles. This  regulation  was  reaffirmed  by  the  Treaty  of  Paris 
in  1856  and  by  the  Treaty  of  London  in  1871.  By  this  latter 
treaty  provision  was  made  for  entrance  of  warships  for  the 
purpose  of  assuring  the  execution  of  the  provisions  of  the 
Treaty  of  Paris  of  1856.  The  United  States  has  never  formal- 
ly admitted  the  right  to  exercise  this  exclusive  jurisdiction. 
The  right  of  navigation  is,  however,  distinct  from  the  right 
of  jurisdiction. 

SAME— GULFS    AND    BAYS. 

37.  Over  snlta  and  bays  xirliolly  ^ivithin  the  territorial  limits, 
and  over  such,  as  are  not  more  than  six  miles  in  ividth 
at  the  opening  into  the  sea,  the  jurisdiction  is  in  the 
shore  state  or  states.  More  extended  jurisdiction  is 
in  some  cases  claimed  and  admitted. 

When  the  opening  to  the  sea  from  a  gulf  or  bay  is  six  miles 
or  less  in  width,  and  the  jurisdiction  of  both  shores  is  in  one 
state,  that  state  has  jurisdiction  over  the  gulf  or  bay.  When 
the  shore  is  in  the  jurisdiction  of  different  states,  the  middle 
of  the  navigable  waters  is  usually  considered  the  limit  of  juris- 
diction, in  absence  of  agreement. 

Claims  to  jurisdiction  over  waters  of  large  area  and  having 
wide  openings  toward  the  sea  have  been  made.^^    James  I  of 

11  "Passing  from  the  common  law  of  England  to  the  general  law 
of  nations,  as  indicated  by  the  text-writers  on  international  jurispru- 
dence, we  find  a  universal  agi'eement  that  harbors,  estuaries,  and 
bays  landlocked  belong  to  the  territory  of  the  nation  which  possesses 
the  shores  round  them,  but  no  agreement  as  to  what  is  the  rule  to 
determine  what  is  'bay'  for  this  purpose. 

"It  seems  generally  agreed  that,  where  the  configuration  and  di- 
mensions of  the  bay  are  such  as  to  show  that  the  nation  occupying 
the  adjoining  coasts  also  occupies  the  bay,  it  is  part  of  the  territory, 
and,  with  this  idea,  most  of  the  writers  on  the  subject  refer  to  de- 
fensibility  from  the  shore  as  the  test  of  occupation ;  some  suggesting, 


§  37)  MARITIME    AND   FLUVIAL   JURISDICTION.  101 

England  made  extensive  claims  to  the  waters  within  lines 
drawn  from  headlands  about  England.  These  were  called 
King's  Chambers.  ^- 

Conventional  agreements  as  to  boundaries  have  been  made 
when  the  openings  of  waters  toward  the  sea  have  exceeded 
the  six-mile  limit.^^  Certain  gulfs  and  bays  having  wide  open- 
ings toward  the  sea  and  of  large  surface  area  are  generally  re- 
garded as  within  the  boundaries  of  the  shore  states,  as  in  case 
of  the  Delaware  and  Chesapeake  Bays  in  the  United  States.^* 

therefore,  a  width  of  one  cannon-shot  from  shore  to  shore,  or  three 
miles;  some,  a  cannon-shot  from  each  shore,  or  six  miles;  some,  an. 
arbitrary  distance  of  ten  miles.  All  of  these  are  rules  which,  if 
adopted,  would  exclude  Conception  Bay  from  the  territory  of  New- 
foundland, but  also  would  have  excluded  from  the  territoi-y  of  Great 
Britain  that  part  of  the  Bristol  Channel  which  in  Reg.  v.  Cunning- 
ham, 1  Bell's  Cr.  Cas.  72,  was  decided  to  be  in  the  county  of  Glamor- 
gan. On  the  other  hand,  the  diplomatists  of  the  United  States  in 
1793  claimed  a  territorial  jurisdiction  over  much  more  extensive 
bays,  and  Chancellor  Kent,  in  his  Commentaries,  though  by  no  means 
giving  the  weight  of  his  authority  to  this  claim,  gives  some  reason 
for  not  considering  it  altogether  imreasonable." 

Direct  U.  S.  Cable  Co.  v.  Anglo-American  Tel.  Co.,  L.  R.  2  App. 
Cas.  (1877)  419. 

"Where  two  nations  are  possessed  of  territory  on  opposite  sides 
of  a  bay  or  navigable  river,  the  sovereignty  of  each  presumptively 
extends  to  the  middle  of  the  water  from  any  part  of  their  respective 
shores."    5  Ops.  Attys.  Gen.  412. 

12  Selden,  Mare  Clausum,  c.  22. 

13  Boundary  Treaty  between  United  States  and  Great  Britain, 
1846,  art.  1:  "From  the  point  on  the  forty-ninth  parallel  of  north 
latitude  where  the  boundary  laid  down  in  existing  treaties  and  con- 
ventions between  the  United  States  and  Great  Britain  terminates, 
the  line  of  boundary  between  the  territories  of  the  United  States 
and  those  of  Her  Britannic  Majesty  shall  be  continued  westward 
along  the  said  forty-ninth  parallel  of  north  latitude  to  the  middle  of 
the  channel  which  separates  the  continent  from  Vancouver's  Island ; 
and  thence  southerly  through  the  middle  of  the  said  channel,  and 
of  Fuca's  Straits  to  the  Pacific  Ocean:  Provided,  however,  that  the 
navigation  of  the  whole  of  the  said  channel  and  Straits,  south  of 
the  forty-ninth  parallel  of  north  latitude,  remain  free  and  open  to 
both  parties." 

14  "The  question  of  jurisdiction  over  many  such  partly  included 
bodies  of  water,  sometimes  called  'closed  seas,'  has  already  been 
decided.  The  Chesapeake  and  Delaware  Bays  are  recognized  as 
parts  of  the  territory  of  the  United  States ;  Hudson  Bay  and  the  Irish 


102  JURISDICTION.  (Ch.  4 

The  Institute  of  International  Law  in  1894  adopted  twelve 
miles  as  the  width  of  mouth  of  inclosed  gulfs  and  bays.^'^  The 
ten-mile  width  of  mouth  for  inclosed  gulfs  and  bays  has  receiv- 
ed much  sanction  in  i-ecent  years. ^®    From  whatever  line  is  rec- 

Sea  as  British  territory;  the  Caspian  Sea  belongs  to  Russia;  Lake 
Michigan  to  the  United  States.  The  Black  Sea,  before  Russia  ob- 
tained a  foothold  upon  it,  formed  part  of  the  territories  of  the  Otto- 
man Porte;  it  is  now  subject  to  the  joint  jurisdiction  of  Turkey  and 
Russia.  The  Baltic  is  acknowledged  to  have  the  cbaracter  of  a  closed 
sea  (and  to  be  subject  to  the  control  of  the  powers  surrounding  it), 
certainly  to  the  extent  of  guaranteeing  it  against  acts  of  belligerency 
when  the  powers  within  whose  territory  it  lies  are  at  peace."  Davis, 
Elements  of  Int.  Law,  p.  58. 

15  13  Annuaire  de  Tlnstitut,  329. 

"In  conformity  with  your  recent  oral  request,  I  have  now  the 
honor  to  make  further  response  to  your  unofficial  note  of  November 
Sth  last,  which  was  acknowledged  on  the  9th  of  the  same  month,  by 
informing  you  that  careful  consideration  would  be  given  to  the  im- 
portant inquiry  therein  made  as  to  the  views  of  the  United  States 
government  touching  the  expediency  of  settling  by  treaty  among  the 
interested  powers  the  question  of  the  extent  of  territorial  jurisdiction 
over  maritime  waters. 

"This  government  would  not  be  indisposed,  should  a  sufficient  num- 
ber of  maritime  powers  concur  in  the  proposition,  to  take  part  in  an 
endeavor  to  reach  an  accord  having  the  force  and  effect  of  inter- 
national law,  as  well  as  of  conventional  regulation,  by  which  the  ter- 
ritorial jurisdiction  of  a  state,  bounded  by  the  high  seas,  should 
henceforth  extend  six  nautical  miles  from  low-water  mark,  and  at 
the  same  time  providing  that  this  six-mile  limit  shall  also  be  that 
of  the  neutral  maritime  zone. 

"I  am  unable,  however,  to  express  the  views  of  tbis  government 
upon  the  subject  more  precisely  at  the  present  time,  in  view  of  the 
important  consideration  to  be  given  to  the  question  of  the  effect  of 
such  a  modification  of  existing  international  and  conventional  law 
upon  the  jurisdictional  boundaries  of  adjacent  states  and  the  applica- 
tion of  existing  treaties  in  respect  to  the  doctrine  of  headlands  and 
bays. 

"I  heed  scarcely  observe  to  you  that  an  extension  of  the  headland 
doctrine,  by  making  territorial  all  bays  situated  Avithin  promontories 
twelve  miles  apart,  instead  of  six,  would  affect  bodies  of  water  now 
deemed  to  be  high  seas  and  whose  use  is  the  subject  of  existing  con- 
ventional stipulations." 

Mr.  Oluey,  Sec.  of  State,  to  Mr.  de  Weckberlin,  Dutch  Min.,  Feb.  15, 
189G,  MS.  Notes  to  the  Netherlands,  VIII,  359,  cited  in  1  Moore, 
§  152,  p.  734. 

16  1  Rivier,  Principes  de  Droit  des  Gens,  154;  Bonfils,  Droit  Int 
Public,  51G;  Perels,  Seerecht,  §  5. 


§  38)  MARITIME    AND   FLUVIAL   JURISDICTION.  103 

ognized  as  the  boundary  of  the  mouth  of  an  inclosed  gulf  or 
bay  the  maritime  jurisdiction  is  held  to  extend  to  a  distance 
of  three  miles  from  this  line.^^ 

A  case  arose  relating  to  the  jurisdiction  over  Conception 
Bay,  v^^hich  is  more  than  twenty  miles  in  width  at  its  mouth. 
A  cable  was  laid  within  the  Bay,  and  at  all  points  more  than 
three  miles  distant  from  the  shore.  While  admitting  there 
was  great  diversity  of  opinion  as  to  what  constituted  water  of 
such  description  territorial,  the  court  held  that  this  was  within 
British  jurisdiction,  "that  in  point  of  fact  the  British  govern- 
ment has  for  a  long  period  exercised  dominion  over  this  bay, 
and  that  their  claim  has  been  acquiesced  in  by  other  nations,  so 
as  to  show  that  the  bay  has  been  for  a  long  time  occupied  ex- 
clusively by  Great  Britain,  a  circumstance  which  in  the  tri- 
bunals of  any  country  would  be  very  important.  And  moreover 
(which  in  a  British  tribunal  is  conclusive)  the  British  legisla- 
ture has  by  acts  of  Parliament  declared  it  to  be  part  of  the 
British  territory,  and  part  of  the  country  made  subject  to  the 
legislature  of  Newfoundland."  ^* 


SAME— INLAND    SEAS   AND   LAKES. 

38.  In  general,  the  jurisdiction  over  inclosed  waters  is  in  tlie 
state  Tirliose  land  surrounds  tlie  water. 
If  an  inland  sea  or  lake  is  surrounded  by  land  belonging 
to  two  or  more  states,  in  absence  of  conventional  agree- 
ment, jurisdiction  is  in  each  state  in  proportion  to  its 
coast  line. 

Such  inclosed  waters  as  Lake  Baikal,  Aral  Sea,  Dead  Sea, 
the  Swiss  and  English  lakes,  Lake  Winnipeg,  or  Lake  Mich- 
igan, are  wholly  within  the  exclusive  jurisdiction  of  the  states 

17  "Article  8.  Under  the  territory  of  the  Icingdom  is  also  included 
the  seacoast  to  within  a  distance  of  three  nautical  miles  of  60°  lati- 
tude at  low-water  mark.  In  regard  to  bays,  that  distance  of  three 
nautical  miles  shall  be  measured  from  a  straight  line  athwart  the 
liay  as  close  as  possible  to  the  entrance  at  the  first  point  at  which 
the  entrance  to  the  bay  exceeds  ten  miles  of  60°  latitude."  Nether- 
lands Proclamation  of  Neutrality,  Russo-Japanese  War,  1904. 

18  Direct  U.  S.  Cable  Co.  v.  Anglo-American  Telegraph  Co.,  [1877] 
L.  R.  2  App.  394. 


104  JURISDICTION.  (Cll.  4 

whose  land  surrounds  them.  A  state  may  exercise  its  jurisdic- 
tion over  landlocked  waters  as  over  the  land  within  its  bounda- 
ries. 

If  an  inland  sea  or  lake  is  surrounded  by  land  belonging  to 
different  states,  the  jurisdiction  over  the  water  area  has  been 
generally  considered  to  reside  in  the  surrounding  states,  though 
the  right  to  navigate  the  waters  is  conceded  to  all  the  states 
whose  lands  touch  the  inclosed  waters.  The  exercise  of  ju- 
risdiction by  different  states  over  the  waters  of  an  inclosed 
sea  or  lake  has  usually  been  regulated  by  conventional  agree- 
ment. The  rights  to  the  Caspian  Sea  are  specified  under  the 
treaties  between  Russia  and  Persia  of  1813  and  1828 ;  the 
Black  Sea  has  been  the  subject  of  many  negotiations,  and  by 
treaty  opened  to  merchant  vessels  ;^^  Lake  Constance  is  con- 
sidered as  belonging  to  Germany,  Switzerland,  and  Austria. 

The  boundary  between  the  United  States  and  Canada  in  the 
Great  Lakes  was  provided  for  in  the  Treaty  of  Peace  between 
the  United  States  and  Great  Britain  in  1783  as  in  the  middle 
of  Lakes  Ontario,  Erie,  and  Huron,  and  to  the  north  of  the 
middle  of  Lake  Superior.  Under  the  Treaty  of  1811,  article 
VII,  commissioners  were  to  be  appointed  to  make  these  bound- 
aries more  definite.  Several  subsequent  treaties  provided  for 
the  maintenance  of  naval  force  on  the  Lakes  by  the  United 
States  and  by  Great  Britain,  for  the  navigation  of  the  bound- 
ary waters  and  of  the  rivers  flowing  from  the  Lakes,  for  wreck, 
ing  privileges,^"  etc.  The  decisions  of  the  United  States  courts 
upon  the  nature  of  the  jurisdiction  to  be  exercised  over  the 
Great  Lakes  have  not  always  been  consistent  as  regards  mu- 
nicipal law,-^  though  the  claim  of  exclusive  jurisdiction  up  to 
the  Canadian  boundary  line  has  been  repeatedly  affirmed  by  the 
United  States  and  admitted  by  Great  Britain. 

A  decision  of  the  United  States  Supreme  Court  in  1892 
states  that  "the  Great  Lakes  are  not  in  any  appreciable  respect 
affected  by  the  tide,  and  yet  on  their  waters,  as  said  above,  a 

19  See  Treaty  of  Paris,  1856,  and  Treaty  of  London,  1871. 

20  Foreign  Relations  U.  S.,  1893.  pp.  341-344. 

21  United  States  v.  Rodgers,  150  U.  S.  249,  14  Sup.  Ct.  109,  37  L. 
Ed.  1071 ;  Illinois  Central  Railroad  v.  Illinois,  146  U.  S.  3S7,  13  Sup. 
Ct.  110,  36  L.  Ed.  1018. 


§  39)  MARITIME   AND    FLUVIAL   JURISDICTION.  105 

large  commerce  is  carried  on,  exceeding  in  many  instances  the 
entire  commerce  of  states  on  the  borders  of  the  sea.  When 
the  reason  of  the  limitation  of  admiralty  jurisdiction  in  Eng- 
land was  found  inapplicable  to  the  condition  of  navigable  wa- 
ters in  this  country,  the  limitation  and  all  its  incidents  were 
discarded.  So  also,  by  the  common  law,  the  doctrine  of  the 
dominion  over  and  ownership  by  the  crown  of  lands  within  the 
realm  under  tide  waters  is  not  founded  upon  the  existence  of 
the  tide  over  the  lands,  but  upon  the  fact  that  the  waters  are 
navigable ;  'tide  waters'  and  'navigable  waters,'  as  already  said, 
being  used  as  synonymous  terms  in  England.  The  public  being 
interested  in  the  use  of  such  waters,  the  possession  by  private 
individuals  of  lands  under  them  could  not  be  permitted  except 
by  license  of  the  crown,  which  could  alone  exercise  such  domin- 
ion over  the  waters  as  would  insure  freedom  in  their  use  so  far 
as  consistent  with  the  public  interest.  The  doctrine  is  founded 
upon  the  necessity  of  preserving  to  the  public  the  use  of  navi- 
gable waters  from  private  interruption  and  encroachment,  a  rea- 
son as  applicable  to  navigable  fresh  waters  as  to  waters  moved 
by  the  tide.  We  hold,  therefore,  that  the  same  doctrine  as  to  the 
dominion  and  sovereignty  over  and  ownership  of  lands  under 
the  navigable  waters  of  the  Great  Lakes  applies,  which  obtains 
at  the  common  law  as  to  the  dominion  and  sovereignty  over 
and  ownership  of  lands  under  tide  waters  on  the  borders  of 
the  sea,  and  that  the  lands  are  held  by  the  same  right  in  the  one 
case  as  in  the  other,  and  subject  to  the  same  trusts  and  limita- 
tions." 22 

SAME— RIVERS. 

39.    (a)    A  state  has  exclusive  jurisdiction  over  rivers  xeholly 
within  its  boundaries. 

(b)  When    a   river    floivs   through   tvsro    or   more    states,   each 

state  has  jurisdiction  over  that  part  Tvholly  ivithin  its 
boundaries. 

(c)  When  a  river  flows  betw^een  tw^o  states,  each  state,  in  ab- 

sence of  other  agreement,  has  jurisdiction  to  the  mid- 
dle of  the  river,  or  in  case  of  a  navigable  river  to  the 
middle  of  the  main  channel,  or  thalw^eg. 

«2  Illinois  Central  Railroad  v.  Ilinois,  Id. 


106  JURISDICTION.  (Ch,  4 

Jurisdiction  over  rivers  should  be  distinguished  from  the 
subject  of  navigation  of  rivers.  Jurisdiction  gives  to  the  state 
entitled  to  it  the  right  to  exercise  state  authority  within  its 
limits.  This  control  may  be  subject  to  certain  restrictions  as 
in  case  of  rights  to  navigate  a  navigable  stream.  The  general 
principle  is  that  the  jurisdiction  over  a  river  is  in  the  riparian 
state  or  states. 

(a)  Rivers  which  are  wholly  within  the  boundaries  of  one 
state  can  have  no  divided  jurisdiction,  but  are  subject  to  its 
exclusive  jurisdiction.  To  such  rivers  the  state  can  apply  any 
regulations  at  will,  unless  rights  have  been  waived  by  interna- 
tional agreements.  In  speaking  of  the  Hudson  river  in  1892, 
Secretary  Foster  said  that  certain  foreign  claims  in  regard  to 
its  use  ignored  "the  salient  fact  that  the  Hudson  river  is  a  nat- 
ural water  way,  rising  and  lying  wholly  within  the  territory  of 
the  United  States,  and  in  no  sense  an  international  water 
course,  to  which  the  riparian  rules  of  international  law  are  ap- 
plicable." -^ 

(b)  A  river,  whose  course  is  partly  within  the  boundaries 
of  one  state  and  partly  within  the  boundaries  of  another,  is  for 
each  part  within  the  jurisdiction  of  the  state  within  which  that 
part  may  flow.  It  is  considered  that  a  state  nearer  the  mouth 
of  a  river  has  a  right  to  demand  that  a  state  nearer  the  source 
shall  not  deprive  it  of  rights  which  it  has  in  the  flow  of  water, 
and,  though  the  state  or  states  nearer  the  source  have  a  right 
to  reasonable  use  of  flowing  water,  they  have  not  a  right  to  ap- 
propriate the  water  to  the  undue  injury  of  the  state  below.-* 

(c)  "When  a  navigable  river  constitutes  the  boundary  be- 
tween two  independent  states,  the  line  defining  the  point  at 
which  the  jurisdiction  of  the  two  separates  is  well  established 
to  be  the  middle  of  the  main  channel  of  the  stream.  The  inter- 
est of  each  state  in  the  navigation  of  the  river  admits  of  no 
other  line.  The  preservation  by  each  of  its  equal  right  in  the 
navigation  of  the  stream  is  the  subject  of  paramount  interest. 
It  is,  therefore,  laid  down  in  all  the  recognized  treatises  on  in- 
ternational law  of  modern  times  that  the  middle  of  the  chan- 


2  3  Foreign  Relations  U.  S.,  1S92,  p.  337. 

24  1  Moore,  §  132,  p.  G.j3;  State  of  Kansas  v.  State  of  Colorado  et  al. 
(1907)  20G  U.  S."  4G,  27  Sup.  Ct.  655,  51  L.  Ed.  95G. 


§  39)  MARITIME    AND    FLUVIAL   JURISDICTION.  107 

ncl  of  the  stream  marks  the  true  boundary  between  the  adjoin- 
ing states,  up  to  which  each  state  will,  on  its  side,  exercise  ju- 
risdiction. In  international  law,  therefore,  and  by  the  us- 
age of  European  nations,  the  term  'middle  of  the  stream,'  as 
applied  to  a  navigable  river,  is  the  same  as  the  middle  of  the 
channel  of  such  stream."  -^  When  a  river  is  not  navigable,  it 
is  held  that  the  jurisdiction  of  the  states  upon  the  opposite 
banks  extends  to  the  middle  of  the  stream. 

When  the  river  suddenly  changes  its  course  and  seeks  a  new 
channel,  the  limits  of  jurisdiction  remain  at  the  middle  of  the 
old  channel.  The  limits  of  jurisdiction  are,  however,  liable  to 
gradual  change  through  the  change  of  the  course  of  the  stream 
by  the  deposit  of  alluvial  formation.  In  such  case  the  losses 
and  gains  would  ordinarily  be  equivalent. 

Questions  of  a  more  complicated  nature  may  arise  when  the 
states  upon  opposite  banks  of  a  boundary  river  wish  to  divert 
a  portion  of  the  water.  In  1897  the  Swiss  Federal  Court  decid- 
ed that  the  canton  of  Schaffhausen  had  no  jurisdiction  over 
the  southern  half  of  the  waterfall  of  the  Rhine,  which  the  can- 
ton of  Lurich  wished  to  exploit  for  power.  This  did  not,  how- 
ever, define  the  respective  rights  of  the  two  cantons.  Profes- 
sor Huber  was  asked  for  an  opinion  upon  this  phase  of  the  re- 
lations of  the  two  cantons.    In  this  opinion  he  says : 

"The  text-writers,  the  practice  of  courts,  and  particularly 
the  intercantonal  and  international  practice,  agree  on  the  whole 
that  each  riparian  owner  has  on  principle  full  control  over  one- 
half  of  the  river,  and,  therefore,  may  grant  concessions  for 
works  located  exclusively  on  its  side,  but  that  the  adjoining 
state  has  an  international  right  of  protest,  which  cannot  be  lost 
through  conflicting  private  rights,  against  all  measures  which 
may  affect  its  territory  injuriously.  Joint  action,  though  not  a 
joint  granting  of  concessions,  is  necessary  in  all  cases  where  a 
single  establishment  affects  both  territories.  With  respect  to 
rights  in  the  river  both  riparian  states  stand  upon  an  absolute 
equality."  ^^ 

2  5  Iowa  V.  Illinois,  147  U.  S.  1,  13  Sup.  Ct.  239,  37  L.  Ed.  55. 
2  6  Translated  in  1  A.  J.  I.  p.  246. 


108  jurusDicTioN.  (Ch.  4 


NAVIGATION. 

40.    (a)    The  high  seas  beyond  the  marine  league  are  open  to 
the   free   navigation  of  all   states, 
(b)    There   is  a   qualified   right   of   navigation   in  most   other 
Avaters. 

(a)  While  there  were  attempts  to  control  the  navigation  of 
the  open  seas  in  early  days,  in  recent  years  the  principle  of  free 
navigation  has  not  been  questioned,  though  a  certain  degree  of 
control  over  the  high  seas  is  claimed  and  admitted  for  revenue 
and  sanitary  purposes  as  regards  vessels  approaching  port. 

(b)  The  navigation  of  other  waters  is  usually  subject  to  a 
measure  of  jurisdiction  varying  according  to  the  nature  of  wa- 
terway and  of  local  control.  Where  there  is  what  may  be  call- 
ed a  general  or  special  right  of  navigation  by  other  states  of 
waters  within  the  domain  of  a  state,  it  partakes  of  the  nature 
of  a  servitude. 

Marginal  Sea. 

Within  the  three-mile  limit  innocent  passage  of  vessels  sail- 
ing the  open  sea  is  uniformly  permitted.  In  time  of  war  re- 
strictions may  be  prescribed  in  regard  to  conduct  within  this 
limit.  In  the  time  of  peace  the  coast  state  may  prescribe  reg- 
ulations in  regard  to  trade,  fishing,  revenue,  pilotage,  quaran- 
tine, ceremonials,  etc.,  to  which  vessels  coming  within  the  ju- 
risdiction may  be  obliged  to  conform.  Foreign  vessels  simply 
passing  through  the  marginal  sea  are  not  usually  regarded  as 
liable  to  the  local  jurisdiction  unless  involved  in  some  act  which 
takes  effect  outside  the  vessel. 

Gulfs  and  Bays. 

In  general  there  are  the  same  rules  for  navigation  of  gulfs 
and  bays  as  for  the  marginal  sea.  The  navigation  of  waters  in 
the  neighborhood  of  fortifications  is  sometimes  forbidden  or 
regulated. 

Straits. 

The  general  rule  is  that  straits  connecting  free  seas  are  open 
to  innocent  navigation. 

Denmark  for  several  centuries  collected  toll  on  vessels  and 
cargoes  passing  between  the  North  and  Baltic  Seas,  and  justi- 


§  40)  NAVIGATION.  109 

fied  this  action  on  the  ground  of  ancient  usage,  and  on  the 
ground  of  keeping  up  the  Hghts  and  poHce  of  the  Danish 
Sounds.  These  tolls  were  known  as  the  "Danish  Sound  Dues." 
The  European  states  in  1857  paid  Denmark  a  sum  in  capitali- 
zation of  the  dues,  while  at  the  same  time  the  United  States 
paid  $393,011  in  consideration  that  Denmark  would  secure  free 
and  unincumbered  navigation  of  American  vessels  through  the 
Sound  and  Belts  forever.-^ 

While  the  Black  Sea  was  wholly  within  Turkish  jurisdic- 
tion, the  navigation  of  the  Bosphorus  and  Dardanelles  was  in 
the  control  of  Turkey.  From  1774  treaties  opened  the  straits  to 
navigation  by  merchant  vessels.  The  exclusion  of  war  vessels 
was  accepted  by  Austria,  France,  Great  Britain,  Prussia,  and 
Russia  in  the  Convention  of  London  in  1841,  and  again  con- 
firmed by  the  Treaty  of  Paris,  1856,  though  by  the  Treaty  of 
London,  1871,  the  Sultan  may,  for  executing  the  Treaty  of 
Paris  of  1856,  "open  the  said  straits  in  time  of  peace  to  the  ves- 
sels of  war  of  friendly  and  allied  powers."  The  United  States, 
though  not  a  party  to  these  treaties,  has  acquiesced  in  their 
provisions.^^  Great  Britain  protested  against  the  passage  of 
the  Straits  in  1902  by  Russian  torpedo  destroyers,  even  though 
disarmed  and  under  the  Russian  merchant  flag.  On  July  28, 
1904,  Mr.  Balfour  in  the  British  House  of  Commons  said  of 
the  vessels  of  the  Russian  volunteer  fleet  which  passed  the  Dar- 
danelles :  "We  took  the  strongest  possible  exception  to  that 
course  on  the  ground  that  no  ship  of  war  could  issue  from  the 
Black  Sea,  and  that  in  our  judgment  the  members  of  the  volun- 
teer fleet,  if  they  issued  from  the  Black  Sea  and  took  belligerent 
action,  either  had  no  right  to  issue  or  no  right  to  take  that  ac- 
tion." 

Canals. 

Canals  are  artificial  waterways.  They  are  constructed  with- 
in the  jurisdiction  of  a  state  or  states,  and  in  absence  of  inter- 
national agreement  are  subject  to  the  jurisdiction  within  which 
they  may  be. 

Certain  canals  are  almost  wholly  national  in  character,  and 
while  shortening  somewhat  the  routes  of  commerce,  as  af- 

2  7  Article  III,  Treaty  of  April  11,  1857. 
2  8  1  jNloore,  §  134,  p.  G64. 


110  JURISDICTION.  (Cll.  4 

fording  convenient  routes,  are  not  essential  for  international 
communication,  nor  would  the  closing  of  them  greatly  inter- 
fere with  the  movement  of  world  commerce.  Such  canals 
are  the  Corinth  and  the  Kiel  Canals.  The  Corinth  Canal, 
opened  1893,  shortening  somewhat  the  route  to  the  Black  Sea, 
wholly  within  the  territory  of  Greece,  is  subject  to  the  exclu- 
sive jurisdiction.  The  Kiel  Canal,  opened  1896,  serving  sim- 
ilarly for  the  route  to  the  Baltic  Sea,  is  exclusively  German. 

Canals  which  connect  great  bodies  of  water,  and  are  inter- 
national in  character,  modify  the  course  of  the  commerce  of 
the  world,  and  their  status  is  therefore  a  matter  of  interna- 
tional concern. 

The  powers  parties  to  the  treaty  of  October  29,  1888,  in  re- 
gard to  the  Suez  Canal,  were  Austria-Hungary,  France,  Ger- 
many, Great  Britain,  Italy,  Netherlands,  Russia,  Spain,  and 
Turkey.  These  states  expressed  the  wish  that  they  might  es- 
tablish "a  definite  system  destined  to  guarantee  at  all  times,  and 
for  all  powers,  the  free  use  of  the  Suez  Maritime  Canal."  Cer- 
tain articles  of  the  treaty  particularly  concern  the  international 
position  of  the  Canal : 

"Article  I.  The  Suez  Alaritime  Canal  shall  always  be  free 
and  open,  in  time  of  war  as  in  time  of  peace,  to  every  vessel 
of  commerce  or  of  war,  without  distinction  of  flag. 

"Consequently,  the  high  contracting  parties  agree  not  in  any 
way  to  interfere  with  the  free  use  of  the  canal,  in  time  of  war 
as  in  time  of  peace. 

"The  canal  shall  never  be  subjected  to  the  exercise  of  the 
right  of  blockade." 

Article  IV  contracts  to  regard  the  three-mile  limit,  the  lim- 
itation on  the  provisioning  of  vessels,  and  the  twenty-four  hour 
rule  in  regard  to  sailing  of  belligerent  vessels  in  time  of  war. 

The  general  result  of  the  other  clauses  of  the  treaty  is  to 
give  security  for  innocent  passage  of  the  canal  by  ships  of  any 
state  at  all  times. ^^ 

2  9  For  text  of  treaty  see  3  Moore,  §  3G9,  p.  204. 

While  Great  Britain  originally  signed  the  treaty  under  reservation 
"as  to  the  application  of  these  provisions,  in  so  far  as  they  may  not 
he  compatible  with  the  transitory  and  exceptional  condition  of  things 
actually  existing  in  Egypt  and  may  limit  the  freedom  of  action  o" 
their  government  during  the  period  of  the  occupation  of  Egypt  by 


§  40)  NAVIGATION.  Ill 

In  1850  the  United  States  and  Great  Britain  made  what  was 
known  as  the  "Clayton-Biihver  Treaty."  This  treaty  provided 
for  the  free  navigation  and  neutrahzation  of  a  canal  between 
the  Atlantic  and  Pacific  Oceans  by  the  way  of  Nicaragua. 
This  treaty  was  the  subject  of  much  discussion,^"  and  was  final- 
ly superseded  by  the  Hay-Pauncefote  Treaty  of  November  18, 
1901,  between  Great  Britain  and  the  United  States,  which  pro- 
vides for  construction  of  a  canal  between  the  Atlantic  and  Pa- 
cific Oceans  under  the  auspices  of  the  United  States  by  any 
route  considered  expedient,  without,  however,  impairing  the 
"general  principle"  of  neutralization  established  in  the  treaty 
of  1857.^^ 

the  forces  of  Her  Britannic  Majesty,"  this  reservation  was  practical- 
ly waived  by  the  treaty  between  France  and  Great  Britain  in  re- 
gard to  Morocco  and  Egypt  of  April  8,  1904: 

"Art.  VI.  In  order  to  insure  the  free  passage  of  the  Suez  Canal, 
His  Britannic  Majesty's  government  declare  that  they  adhere  to  the 
stipulations  of  the  treaty  of  the  29th  October,  ISSS,  and  that  they 
agree  to  their  being  put  in  force.  The  free  passage  of  the  Canal 
being  thus  guaranteed,  the  execution  of  the  last  sentence  of  paragraph 
1  as  well  as  of  paragraph  2  of  article  VIII  of  that  treaty  will  remain 
in  abeyance."    Par.  Papers,  Treaty  Series  (1905),  No.  6. 

30  3  Moore,  §  351,  seq. 

31  The  clauses  covering  the  provisions  of  the  Hay-Pauncefote  Trea- 
ty of  November  18,  1901,  in  regard  to  a  trans-isthmian  canal  are  as 
follows: 

"Article  I.  The  high  contracting  parties  agree  that  the  present 
treaty  shall  supersede  the  afore-mentioned  convention  of  the  19th 
April,  1850. 

"Article  II.  It  is  agreed  that  the  canal  may  be  constructed  under 
the  auspices  of  the  government  of  the  United  States,  either  directly 
at  its  own  cost,  or  by  gift  or  loan  of  money  to  individuals  or  corpo- 
rations, or  through  subscription  to  or  purchase  of  stock  or  shares, 
and  that,  subject  to  the  provisions  of  the  present  treaty,  the  said 
government  shall  have  and  enjoy  all  the  rights  incident  to  such  con- 
struction, as  well  as  the  exclusive  right  of  providing  for  the  regula- 
tion and  management  of  the  canal. 

"Article  III.  The  United  States  adopts,  as  the  basis  of  the  neutral- 
ization of  such  ship  canal,  the  following  rules,  substantially  as  em- 
bodied in  the  Convention  of  Constantinople,  signed  the  2Sth  October, 
1888,  for  the  free  navigation  of  the  Suez  Canal,  that  is  to  say: 

"1.  The  canal  shall  be  free  and  open  to  the  vessels  of  commerce 
and  of  war  of  all  nations  observing  these  rules,  on  terms  of  entire 
equality,  so  that  there  shall  be  no  discrimination  against  any  such 
cation,  or  its  citizens  or  subjects,  in  respect  of  the  conditions  or 


112  JURISDICTION.  (Ch.  4 

A  revolution  occurred  on  the  Isthmus  of  Panama  early  in 
November,  1903.  The  United  States  recognized  the  revolution- 
ary as  the  de  facto  government  on  November  G,  and  a  treaty 
with  the  new  Republic  of  Panama  was  signed  November  18, 
1903.^^  By  this  treaty,  providing  for  the  construction  of  a 
canal,  the  United  States  "guarantees  and  will  maintain  the  in- 

(harges  of  traffic,  or  otherwise.  Such  conditions  and  charges  of  traf- 
fic shall  be  just  and  equitable. 

"2.  The  canal  sliall  never  be  blockaded,  nor  shall  any  right  of  war 
be  exercised  nor  any  act  of  hostility  be  committed  within  it.  The 
United  States,  however,  shall  be  at  liberty  to  maintain  such  military 
police  along  the  canal  as  may  be  necessary  to  protect  it  against  law- 
lessness and  disorder. 

"3.  Vessels  of  war  of  a  belligerent  shall  not  revictual  nor  take  any 
stores  in  the  canal  except  so  far  as  may  be  strictly  necessary ;  and 
the  transit  of  such  vessels  through  the  canal  shall  be  effected  with 
the  least  possible  delay  in  accordance  with  the  regulations  in  force, 
and  with  only  such  intermission  as  may  result  from  the  necessities 
of  the  service. 

"Prizes  shall  be  in  all  respects  subject  to  the  same  rules  as  vessels 
of  war  of  the  belligerents. 

"4.  No  belligerent  shall  embark  or  disembark  troops,  munitions  of 
war,  or  warlike  materials  in  the  canal,  except  in  case  of  accidental 
hindrance  of  the  transit,  and  in  such  case  the  transit  shall  be  re- 
sumed with  all  possible  dispatch. 

"5.  The  provisions  of  this  article  shall  apply  to  waters  adjacent 
to  the  canal,  within  three  marine  mDes  of  either  end.  Vessels  of 
war  of  a  belligerent  shall  not  remain  in  such  waters  longer  than 
twenty-four  hours  at  any  one  time,  except  in  case  of  distress,  and  in 
such  case,  shall  depart  as  soon  as  possible,  but  a  vessel  of  war  of  one 
belligerent  shall  not  depart  within  twenty-four  hours  from  the  de- 
parture of  a  vessel  of  war  of  the  other  belligerent. 

"6.  The  plant,  establishments,  buildings,  and  all  work  necessary  to 
the  construction,  maintenance,  and  operation  of  the  canal  shall  be 
deemed  to  be  part  thereof,  for  the  purposes  of  this  treaty,  and  in 
time  of  war,  as  in  time  of  peace,  shall  enjoy  complete  immunity  from 
attack  or  injury  by  belligerents,  and  from  acts  calculated  to  impair 
their  usefulness  as  part  of  the  canal. 

"Article  IV.  It  is  agreed  that  no  change  of  teii'itorial  sovereignty 
or  of  the  international  relations  of  the  country  or  countries  traversed 
by  the  before-mentioned  canal  shall  affect  the  general  principle  of 
neutralization  or  the  obligation  of  the  high  contracting  parties  under 
the  present  treaty." 

3  2  For  history  since  1898,  see  La  tang,  America  as  a  World  Power, 
c.  XII,  The  Panama  Canal. 


§  40)  NAVIGATION.  113 

dependence  of  the  Republic  of  Panama"  (Art.  I).  "The  Re- 
pubHc  of  Panama  grants  to  the  United  States  in  perpetuity  the 
use,  occupation  and  control  of  a  zone  of  land  and  land  under 
water  for  the  construction,  maintenance,  operation,  sanitation 
and  protection  of  said  canal  of  the  width  of  ten  miles  extend- 
ing to  the  distance  of  five  miles  on  each  side  of  the  center  line 
of  the  route  of  the  canal  to  be  constructed ;  the  said  zone 
beginning  in  the  Caribbean  Sea  three  marine  miles  from  mean 
low-water  mark  and  extending  to  and  across  the  Isthmus  of 
Panama  into  the  Pacific  Ocean  to  a  distance  of  three  marine 
miles  from  mean  low-water  mark,  with  the  proviso  that  the 
cities  of  Panama  and  Colon  and  the  harbors  adjacent  to  said 
cities,  which  are  included  within  the  boundaries  of  the  zone 
above  described,  shall  not  be  included  within  this  grant"  (Art. 
II).  The  United  States  also  acquire  similar  rights  over  cer- 
tain other  waters,  islands,  etc.,  the  right  of  eminent  domain  in 
the  cities  of  Panama  and  Colon,  as  well  as  sanitary  control 
and  the  general  rights  of  control  of  the  Canal  Zone.  The 
treaties  thus  far  negotiated  provide,  therefore,  for  a  trans- 
Isthmian  canal  under  the  control  of  the  United  States,  with 
an  international  status  "substantially  as  embodied  in  the  con- 
vention" for  the  navigation  of  the  Suez  Canal. 

Riz'crs. 

The  claim  that  river  navigation  should  be  free  has  received 
much  support  both  in  the  earlier"^  and  later  writers;^*  but  in 
later  years  practice  has  inclined  toward  regulation  of  naviga- 
tion by  conventional  agreements.^^ 

The  general  rules  are  as  follows : 

(a)  The  navigation  of  rivers  wholly  within  the  boundaries 
of  one  state  is  exclusively  within  the  control  of  that  state. 

(b)  The  navigation  of  boundary  rivers  is  in  the  control  of 
the  states  having  jurisdiction  over  the  river. 

(c)  The  navigation  of  rivers  flowing  through  two  or  more 
states  is,  for  such  parts  as  are  in  each  state,  within  the  con- 
trol of  such  state. 

The  above  rules  are  modified  by  many  treaties  and  by 
practice. 

33Grotius,  II,  c.  II,  12-14.  3  4  Calvo,  §§  2.59,  290,  291. 

35  2  Pradier-Fodere,  §§  727-755. 

WiLS.lNT.L.— S 


114  JURISDICTION.  (Ch.  4 

There  has  been  a  tendency,  particularly  since  the  Congress 
of  Vienna  in  1815,  to  open  the  rivers  which  are  the  more  im- 
portant highways  of  international  commerce  to  freedom  of 
navigation.  This  Congress  made  certain  arrangements  for  the 
free  navigation  of  the  Rhine,  Neckar,  Maine,  Moselle,  Meuse, 
and  Scheldt.^^  Provisions  like  that  of  the  treaty  of  peace  be- 
tween Great  Britain  and  the  United  States  in  1783,  article 
VIII,  "The  navigation  of  the  river  Mississippi,  from  its  source 
to  the  ocean,  shall  forever  remain  free  and  open  to  the  subjects 
of  Great  Britain  and  the  citizens  of  the  United  States,"  had 
often  been  negotiated  between  two  or  more  states. ^^  This  pro- 
vision for  the  navigation  of  the  Mississippi  was  not  included 
in  the  Treaty  of  Ghent  between  the  two  powers  in  1814.  Arti- 
cle XV  of  the  Treaty  of  Paris  of  March  30,  1856,  provided  as 
follows : 

"The  act  of  the  Congress  of  Vienna  having  established  the 
principles  intended  to  regulate  the  navigation  of  rivers  which 
separate  or  traverse  different  states,  the  contracting  powers 
stipulate  among  themselves  that  those  principles  shall  in  fu- 
ture be  equally  applied  to  the  Danube  and  its  mouths.  They 
declare  that  this  arrangement  henceforth  forms  a  part  of  the 
public  law  of  Europe,  and  take  it  under  their  guarantee." 

The  navigation  of  the  St.  Lawrence  river  has  been  regulated 
by  conventional  agreement. 

In  nearly  all  cases  the  states  through  which  the  river  flows, 
while  granting  freedom  of  navigation  in  the  treaties,  reserve 
the  right  to  regulate  the  use  of  the  river,  in  order  that  it  may 
not  be  inconsistent  with  domestic  law  or  harmful  to  the  state. 

Interior  Waters. 

Interior  waters,  such  as  lakes  and  seas,  form  a  part  of  the 
maritime  domain  of  the  border  state  or  states.  If  wholly  with- 
in one  state,  that  state,  in  absence  of  agreement,  has  exclusive 
regulation  of  the  use  of  the  waters.  If  surrounded  by  the 
land  of  two  or  more  states,  the  use  of  the  waters  is  consid- 
ered common  to  the  border  states. 

"There  are  other  seas  than  the  ocean  whose  open  waters 

86  1  Hertslet,  p.  2,  arts.  CVIII-CXVII. 

37  Austria  and  Russia,  as  to  Vistula,  1815;  Border  States,  as  to 
Elbe,  1821 ;  Same,  as  to  Weser,  1823 :  Same,  as  to  Po,  1823. 


§  41)  FISHERIES.  115 

constitute  a  free  highway  for  navigation  to  the  nations  and 
people  residing  on  their  borders,  and  are  not  a  free  highway 
to  other  nations  and  people,  except  there  be  free  access  to 
those  seas  by  open  waters  or  by  conventional  arrangements."  ^* 
The  domain,  in  absence  of  conventional  agreement,  is  pro- 
portional to  the  extent  of  the  shore  line,^®  while  jurisdiction 
for  many  purposes  may  be  concurrent,  extending  over  the 
whole  water  area.*" 

FISHERIES. 

41.    (a)    Fishing  in  the  open  sea  is  free  to  all,  though  some- 
times regulated  by  treaties   or  domestic   laws  binding 
those  subject  to  them, 
(b)    A   state  may   control  or  forbid  fishing  ivithin  its  mari« 
time  or  fluvial  domain. 

(a)  While  fishing  on  the  open  sea  is  free  to  all,  it  has  often 
been  deemed  advisable  to  make  agreements  for  the  good  of  all 
as  to  the  manner,  time,  amount,  etc.,  of  fishing.  In  the  time 
of  Elizabeth  the  use  of  waters  for  fishing  was  assimilated  to 
the  use  of  waters  for  navigation.*^  Claims  to  exclusive  fish- 
ing rights  beyond  the  marine  league,  in  the  open  sea,  have  in 
general  been  abandoned,  though  not  in  waters  within  what 
may  be  classed  as  inclosed  gulfs,  bays,  etc.,  even  though  the 
opening  to  the  sea  is  more  than  ten  miles  in  width. 

The  question  of  the  rights  of  the  United  States  over  waters 
in  the  Bering  Sea  was  raised  in  the  Fur  Seal  Arbitration  in 
1893: 

38  United  States  v.  Rogers,  150  U.  S.  249,  14  Sup.  Ct.  109,  37  L.  Ed. 
1071 ;  Treaty  of  Washington,  1871,  art.  XXXIII. 

30  Weber  v.  Harbor  Commissioners,  IS  Wall.  57,  21  L.  Ed.  798; 
Illinois  Central  Railroad  v.  Illinois,  146  U.  S.  387,  13  Sup.  Ct.  110,  30 
L.  Ed.  lOlS. 

40  In  the  case  of  United  States  v.  Rogers  it  was  declared  that  "the 
courts  of  the  United  States  have  jurisdiction,  under  section  5340  of 
the  Revised  Statutes  [U.  S.  Comp.  St.  1901,  p.  3G30],  to  try  a  person 
for  an  assault,  with  a  dangerous  weapon,  committed  on  a  vessel  be- 
longing to  a  citizen  of  the  United  States,  when  such  vessel  is  in  the 
Detroit  river,  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  territorial  limits  of  the  Dominion  of  Canada."  150  U.  S. 
249,  14  Sup.  Ct.  109,  37  L.  Ed.  1071.    See,  also,  1  Moore,  §§  135-143. 

41  1  Phillimore,  p.  266. 


116  JURISDICTION.  (Cll.  4 

"5.  Has  the  United  States  any  right,  and,  if  so,  what  right, 
of  protection  or  property  in  the  fur  seals  frequenting  the  is- 
lands of  the  United  States  in  Bering  Sea,  when  such  seals 
are  found  outside  the  ordinary  three-mile  limit?" 

The  opinion  of  the  arbitrators  was :  "As  to  the  fifth  of  the 
said  five  points,  we,  the  said  Baron  de  Courcel,  Lord  Hannen, 
Sir  John  Thompson,  Marquis  Visconti  Venosta,  and  Mr. 
Gregers  Gram,  being  a  majority  of  the  said  arbitrators,  do 
decide  and  determine  that  the  United  States  has  not  any  right 
of  protection  or  property  in  the  fur  seals  frequenting  the  is- 
lands of  the  United  States  in  Bering  Sea,  when  such  seals 
are  found  outside  the  ordinary  three-mile  limit." 

The  jurisdiction  over  the  pearl  fisheries  off  Ceylon  to  a  con- 
siderable distance  beyond  the  three-mile  limit  was  based,  ac- 
cording to  the  British  contention  in  the  Fur  Seal  Arbitration, 
upon  "'claim  to  the  products  of  certain  submerged  portions  of 
land  which  have  been  treated  from  time  immemorial  by  the 
successive  rulers  of  the  island  as  subjects  of  property  and  ju- 
risdiction." 

The  many  questions  in  regard  to  fishing  in  the  open  sea 
have  ordinarily  arisen  in  consequence  of  treaty  provisions  ex- 
isting among  states.  This  is  seen  in  such  conventions  as  that 
of  North  Sea  Fisheries  of  May  6,  1882 ;  Convention  Concern- 
ing the  Regulation  of  the  Liquor  Traffic  among  the  Fishermen 
in  the  North  Sea,  November  16,  1887;  Convention  of  London 
in  Regard  to  Fisheries  around  Faroe  Islands,  etc.,  June  24, 
1901.*"^ 

In  general,  however,  fishing  on  the  high  sea  is  free  to  all. 
Citizens  of  a  state  are,  of  course,  bound  by  treaties  and  local 
laws  of  that  state,  which  may  prohibit  or  limit  to  some  extent 
their  exercise  of  the  general  right. 

(b)  Within  its  maritime  or  fluvial  domain  a  state  may  con- 

*-  On  July  19,  1906,  in  the  case  of  INIorteusen  v.  Peters,  Ilish  Court 
of  Jus.tic'iary  of  Scotland,  it  was  maintained  that  domestic  legislation 
extended  to  the  regulation  of  fishing  in  Moray  Firth,  even  though 
the  opening  toward  the  sea  might  be  more  than  ten  miles  wide.  This 
decision  has  been  criticised  on  various  grounds.  See  "The  Recent 
Controversy  as  to  the  British  Jurisdiction  over  Foreign  Fishermen 
More  than  Three  Miles  from  Shore,"  C.  N.  Gregory,  1  Amer.  Pol.  Sol. 
Rev.  p.  410. 


§  42)  VESSELS.  117 

trol  fishing.  A  state  may  grant  to  other  states  rights  in  its 
coast  fisheries,  and  these  may  become,  as  in  the  case  of  the 
Nortlieastern  or  Canadian  Fisheries,  fruitful  sources  of  in- 
ternational differences.*^ 


VESSELS. 

42.    The  jurisdiction  over  vessels  depends: 

(a)  On  the  character  of  the  vessel,  as  public  or  private. 

(b)  On  place  in  ivhich  the  vessel  is,  as  in  port,  on  the  high 

seas. 

(c)  On  the  nationality  of  the  vessel. 

Closely  related  to  the  exercise  of  maritime  jurisdiction  is 
the  exercise  of  jurisdiction  over  the  vessels  which  are  upon  the 
water.  It  is  necessary  that  a  vessel  be  under  some  jurisdiction, 
even  on  the  high  seas ;  for  many  of  the  acts  which  are  pro- 
hibited on  land  may  take  place  on  a  vessel  at  sea.  A  theft  or 
assault  on  a  vessel  at  sea  would  not  be  unlike  a  similar  offense 
on  land.  Unless  there  were  established  rules  for  the  exercise 
of  jurisdiction,  complications  might  arise  if  on  a  British  vessel' 
an  American  sailor  should  assault  a  French  traveler. 

(a)  Public  vessels  are  those  engaged  in  service  of  the  state 
and  under  command  of  government  officers.  As  such  they  are 
under  the  direct  government  control,  and  for  their  acts  the 
government  is  liable. 

Private  vessels  are  only  indirectly  under  government  control, 
and  for  their  acts  the  government  is  only  indirectly  liable. 

Certain  vessels  are  regarded  as  semi-public  when  engaged  in 
service  which  is  of  value  to  all  states,  as  postal  vessels  and 
exploring  expeditions.  Provisions  for  the  treatment  of  such 
vessels  are  usually  made  in  treaties. 

(b)  A  state  has  exclusive  jurisdiction  over  its  public  and 
private  vessels  in  all  places  outside  the  jurisdiction  of  a  foreign 
state.** 

4  3  1  Moore,  §§  163^168.  For  Newfoundland  Acts  1906  and  Modus 
Vivendi  October  6-8,  190G,  see  1  A.  J.  I.  Official  Documents,  pp. 
22-31. 

44  Wilson  V.  McNamee,  102  U.  S.  572,  26  L.  Ed.  234;  United  States 
V.  Rodgers,  150  U.  S.  249,  14  Sup.  Ct.  109,  37  L.  Ed.  1071. 


118  JURISDICTION.  (Ch.  4 

A  public  vessel  within  the  jurisdiction  of  a  foreign  state  is'*^ 
in  general  subject  only  to  local  port  regulations.     The  exemp- 
tion from  local  jurisdiction  in  a  foreign  port  extends  not  mere- 
ly to  the  ship  itself,  but  to  the  boats,  rafts,  etc.,  belonging  to 
the  ship  and  engaged  in  its  service.^" 

Asylum  on  board  public  vessels  in  a  foreign  port  is  some- 
times granted,  though  such  action  is  less  frequent  than  ior- 
merly.  On  unquestioned  grounds  of  humanity  it  may  be  and 
is  granted,  as  in  less  civilized  regions  to  those  fleeing  from 
slavery,  or  to  those  who  in  time  of  political  uprising  flee  to  the 
vessel,  pursued  by  irresponsible  parties.*®  The  commander  o~T,  y 
the  vessel  is  in  all  cases  responsible  to  his  government  for  his 
action ;  and,  if  he  refuses  to  release  a  refugee  at  the  request  of 
the  local  authorities,  resort  must  be  had  to  the  ordinary  diplo-/ 
matic  processes.  The  local  state  is  at  liberty  to  regard  such 
action  as  an  interference  with  its  legitimate  exercise  of  juris- 
diction, and  may  even  request  the  vessel  to  leave.*'  - 

It  is  generally  admitted  that  merchant  vessels  cannot  grant 
asylum,  and  that  passengers  in  transit,  accused  of  committing 
crime  in  a  state,  are  liable  to  local  jurisdiction  while  within 
ports  of  that  state.*** 

4  5  The  Santissima  Trinidad,  7  Wiieat.  283,  5  L.  Ed.  454. 

4  6  "The  right  of  asylum  for  political  or  other  refugees  has  no 
foundation  in  international  law.  In  countries,  however,  where  fre- 
quent insurrections  occur,  and  constant  instability  of  government  ex- 
ists, usage  sanctions  the  granting  of  asylum ;  but,  even  in  the  waters 
of  such  countries,  officers  should  refuse  all  applications  for  asylum, 
except  when  required  by  the  interests  of  humanity  in  extreme  or 
exceptional  cases,  such  as  the  pursuit  of  a  refugee  by  a  mob.  Offi- 
cers must  not  directly  nor  indirectly  invite  refugees  to  acc-cpt  asy- 
lum."   United  States  Navy  Regulations  of  1905,  No.  308. 

4  7  For  discussion  as  to  asylum  to  political  refugees  in  Brazil,  1894, 
Foreign  Relations  U.  S.,  1894,  pp.  65  seq.,  514  seq. 

4  8  "If  it  were  generally  understood  that  the  masters  of  American 
merchantmen  are  to  permit  the  orderly  operation  of  the  law  in  ports 
of  call,  as  regards  persons  on  board  accused  of  crime  committed  in 
the  country  to  which  the  port  pertains,  it  is  probable  on  the  one 
hand  that  occasions  of  arrest  would  be  less  often  invited  by  the  act 
of  the  accused  in  taking  passage  Avith  a  view  to  securing  supposed 
asylum,  and  on  the  other  hand  that  the  regular  resort  to  justice 
would  replace  the  reckless  and  offensive  resort  to  arbitrary  force 
against  an  unarmed  ship,  which,  when  threatened  or  committed,  has 
in  more  than  one  instance  constrained  urgent  remonstrance  on  the 


§  42)  VESSELS.  119 

Though  a  state  may  admit  foreign  merchant  vessels  to  its 
ports,  it  does  not  thereby  waive  the  right  to  exercise  over  these 
vessels  such  jurisdiction  as  it  may  deem  expedient.  Secretary 
Bayard  in  1885  said : 

"It  may  be  safely  affirmed  that,  when  a  merchant  vessel  of 
one  country  visits  the  ports  of  another  for  the  purposes  of 
trade,  it  owes  temporary  allegiance  and  is  amenable  to  the 
jurisdiction  of  that  country,  and  is  subject  to  the  laws  which 
govern  the  port  it  visits  so  long  as  it  remains,  unless  it  is  other- 
wise provided  by  treaty. 

"Any  exemption  or  immunity  from  local  jurisdiction  must 
be  derived  from  the  consent  of  that  country."  *® 

In  case  of  offenses  committed  on  board  a  foreign  vessel  in  a 
port,  the  French  usage  has  steadily  grown  in  favor.  The 
French  usage  is,  unless  local  interference  is  requested,  to  leave 
to  the  authorities  of  the  state  whose  flag  the  merchant  vessel 
flies  action  as  to  offenses  which  concern  the  discipline  of  the 
vessel  itself  and  as  to  offenses  which  do  not  disturb  the  peace 
of  the  port.^"  Acts  committed  by  or  against  parties  who  do 
not  belong  to  the  vessel,  or  acts  which  disturb  the  peace  of  the 
port,  may  be  cognized  by  thfe  local  authorities.  Article  XIII 
of  the  Treaty  between  the  United  States  and  the  German  Em- 
pire, December  11,  1871,  embodies  these  principles: 

"Consuls  general,  consuls,  vice  consuls  or  consular  agents 
shall  have  exclusive  charge  of  the  internal  order  of  the  mer- 
chant vessels  of  their  nation,  and  shall  have  the  exclusive  pow- 
er to  take  cognizance  of  and  to  determine  differences  of  every 
kind  which  may  arise,  either  at  sea,  or  in  port,  between  cap- 
tains, officers  and  crews,  and  specially  in  reference  to  wages 
and  the  execution  of  mutual  contracts.  Neither  any  court  or 
authority,  shall,  on  any  pretext,  interfere  in  these  differences 
except  in  cases  where  the  differences  on  board  ship  are  of  a 
nature  to  disturb  the  peace  and  public  order  in  port,  or  on 

part  of  this  government."  Secretary  Gresham  to  President  of  Pacific 
Mail  Steamship  Co.,  Dec.  30,  1S93,  Foreign  Relations.  U.  S.  1894.  p. 
297 ;  2  JNIoore,  §  307. 

4  9  Foreign  Relations  U.  S.,  18S5,  p.  82. 

00  Bonfils,  De  la  Competence  de  Tribunaux  Frangais,  No.  326;  XVI 
Annua  ire  de  I'lustitut  de  Droit  International,  p.  231. 


1-0  JURISDICTION.  (Ch,  4 

shore,  or  wlien  persons  other  than  the  officers  and  crew  of  the 
vessel,  are  parties  to  the  disturhancc. 

"Except  as  aforesaid,  the  local  authorities  shall  confine 
themselves  to  the  rendering  of  efficient  aid  to  the  consuls,  when 
they  may  ask  it  in  order  to  arrest  and  hold  all  persons,  whose 
names  are  borne  on  the  ship's  articles,  and  whom  they  may 
deem  it  necessary  to  detain.  Those  persons  shall  be  arrested 
at  the  sole  request  of  the  consuls  addressed  in  writing-  to  the 
local  authorities  and  supported  by  an  official  extract  from  the 
register  of  the  ship  or  the  list  of  the  crew,  and  shall  be  held, 
during  the  whole  time  of  their  stay  in  the  port,  at  the  disposal 
of  the  consuls.  Their  release  shall  be  granted  only  at  the  re- 
quest of  the  consuls,  made  in  writing. 

"The  expenses  of  the  arrest  and  detention  of  those  persons 
shall  be  paid  by  the  consuls." 

Similar  provisions  are  contained  in  many  other  treaties. 

The  British  Territorial  Waters  Jurisdiction  Act  of  1878, 
however,  claims  that  vessels  simply  passing  through  British 
marginal  waters  are  liable  to  British  law.^^ 

(c)  The  nationality  of  a  vessel  is  usually  determined  by  the 
flag  of  the  vessel.  In  time  of  peace,  the  nationality  of  a  public 
vessel  is  determined  by  its  flag,  or  in  exceptional  cases  by  the 
word  of  the  commander.  The  nationality  of  a  private  vessel 
is  usually  that  of  its  flag;  but,  in  case  of  question,  the  vessel 
must  have  papers  w^hich  establish  its  claims.  These  papers 
vary  for  different  states,  but  usually  include  registry,  muster 
roll,  description,  certificate  of  ownership,  license,  etc. 

AERIAL   JURISDICTION. 

43.  It  is  now^  recognized  that  tlie  jurisdiction  of  a  state  in- 
cludes the  right  to  exercise  authority  in  the  atmos- 
phere above  the  state  domain. 

The  use  of  the  atmosphere  as  a  medium  of  communication 
and  as  a  highway  for  airships,  etc.,  has  led  to  the  recognition 
of  the  rights  and  duties  of  states  in  the  atmosphere  above 
their  domain. 

61  St.  41  &  42  Vict.  c.  73. 


§  43)  AERIAL   JURISDICTION.  121 

When  the  atmosphere  was  first  used  as  a  highway  in  time  of 
war,  those  thus  using  it  were  threatened  with  exceptionally  se- 
vere treatment,  as  during  the  Franco-Prussian  war  of  1870 
Bismarck  regarded  those  crossing  territory  occupied  hy  the 
Prussians  as  liable  to  treatment  as  spies.  Similarly  the  Rus- 
sian commander  in  the  Far  East  during  the  Russo-Japanese  war 
in  1901  declared  he  would  regard  newspaper  correspondents 
using  wireless  telegraph  apparatus  as  spies.  Both  these  claims 
were  regarded  as  extreme,  and  protests  were  entered.  It  was 
not  denied,  however,  that  the  state  would  have  some  measure 
of  jurisdiction  in  such  cases.  It  was  admitted  that  the  use 
of  the  atmosphere  above  belligerent  territory  might  be  forbid- 
den to  balloons,  or  that  those  making  use  of  the  atmosphere 
above  belligerent  territory  might  become  liable  to  treatment  cis 
prisoners  of  war.  It  was  also  admitted  that  the  use  of  wire- 
less telegraph  in  time  of  war  might  be  regulated  within  the 
area  of  hostilities,  and  that  belligerents  might  be  forbidden  the 
use  of  wireless  telegraph  apparatus  within  neutral  jurisdiction. 
The  Hague  Convention  Respecting  the  Rights  and  Duties  of 
Neutral  Powers  provides : 

"Article  III.  Belligerents  are  likewise  forbidden  to : 

"(a)  Erect  on  the  territory  of  a  neutral  power  a  wireless 
telegraphy  station  or  other  apparatus  for  the  purpose  of  com- 
municating with  belligerent  forces  on  land  or  sea ; 

"(b)  Use  any  installation  of  this  kind  established  by  them 
before  the  war  on  the  territory  of  a  neutral  power  for  purely 
military  purposes,  and  which  has  not  been  opened  for  the  serv- 
ice of  public  messages,"  though  a  neutral  is  not  called  upon  to 
forbid  the  use  of  its  own  or  regular  private  system  within  its 
territory. 

In  time  of  peace,  also,  it  has  been  admitted  that  a  state 
should  exercise  jurisdiction  over  its  aerial  domain.  Numerous 
reports  of  national  and  international  commissions  have  shown 
that  this  is  necessary  in  order  that  systems  of  wireless  teleg- 
raphy may  not  "be  rendered  absolutely  useless  by  accident  or 
by  design." 

In  1903  the  states  signing  the  protocol  of  the  Preliminarv 
Conference  on  Wireless  Telegraphy  at  Berlin  did  not  hesi- 
tate to  assume  the  right  of  aerial  jurisdiction,  and  the  larger 


122  JURISDICTION.  (Ch.  4 

conference  in  190G,  proceeding  on  the  same  basis,  prescribed 
more  detailed  regulations  for  the  use  of  the  atmosphere  for 
radio-telegraphic  purposes. 

The  Institute  of  International  Law,  at  its  session  in  Septem- 
ber, 1906,  maintained  the  right  of  a  state  to  make  rules  for 
the  use  of  its  atmospheric  domain  by  wireless  telegraph.^^ 

6-^  DISPOSITIONS  fri!;liminaikes. 

Article  Proniier.  L'air  est  libre.  Les  fitats  n'ont  sur  lui,  en  temps 
de  paix  et  eu  temps  de  guerre,  que  les  droits  necessaires  Sl  leur  conser- 
vation. 

Art.  2.  A  defaut  de  dispositions  speciales,  les  regies  applicables  k 
la  correspondance  telegrapliique  ordinaire  le  sont  S,  la  correspondance 
telfigrapliiqiie  sans  til. 

PBEMlfiRE    PaKTIE. 

Etat  de  Paix. 

Art.  3.  Chaque  Ktat  a  la  faculty,  dans  la  mesure  ngcessaire  h  sa 
security,  de  s'opposcr,  au-dessus  de  son  territoire  et  de  ses  eaux  terri- 
toriales,  et  aiissi  haut  quil  sera  utile,  an  passage  d'ondes  hertziennes. 
que  celles-ci  soient  eniises  par  nn  appareil  d'Etat  ou  par  un  appareil 
privg  place  u  terre.  a  bord  d'un  navire  ou  d'un  ballon. 

Art.  4.  Au  cas  d'interdiction  de  la  correspondance  par  la  telegra- 
phie  sans  fil,  le  gouvernenient  devra  aviser  immediatement  les  autres 
gouvernemeuts  de  la  defense  qu'il  §dicte. 

Seconde  Partie. 
Etat  de  Guerre. 

Art.  .5.  Les  regies  admises  pour  le  temps  de  paix  sont,  en  prineipe. 
applicables  au  temps  de  guerre. 

Art.  6.  Sur  la  baute  mer,  dans  la  zone  qui  correspond  a  la  spbere 
d'action  de  leurs  operations  railitaires.  les  belligerants  peuvent  em- 
pecber  les  emissions  d'ondes.  nieme  par  un  sujet  neutre. 

Art.  7.  Ne  sont  pas  consideres  comme  espions  de  guerre  mais  doivent 
etre  traites  comme  prisonniers  de  guerre,  s'ils  sont  captures,  les  indi- 
vidus  qui,  malgre  la  defense  du  belligerant,  se  livrent  a  la  transmis- 
sion ou  a  la  reception  des  depecbes  par  telegrapbie  sans  fil  entre  les 
diverses  parties  d'une  armee  ou  d"un  territoire  belligerant.  11  doit  en 
etre  autrement  si  la  correspondance  est  faite  sous  de  faux  pretextes. 

Les  porteurs  des  depecbes  transmises  par  la  telegrapbie  sans  til 
sont  assimiles  k  des  espions  lorsqu'ils  emploient  la  dissimulation  ou 
la  ruse. 

Les  navires  et  les  ballons  neutres  qui,  par  leurs  communications 
avec  I'ennemi,  peuvent  etre  consideres  comme  s'etant  mis  a  son  serv- 
ice, pourront  etre  confisques  ainsi  que  leurs  depecbes  et  leurs  appa- 
reils.  Les  sujets,  navires  et  ballons  neutres,  s'il  n'est  pas  etabli  que 
leur  correspondance  etait  destinee  ^  fournir  a  I'adversaire  des  ren- 


§  43)  AERIAL   JURISDICTION.  123 

The  provision  in  the  Constitution  of  the  United  States  vest- 
ing- in  Congress  the  power  to  regulate  commerce  has  already 
been  held  to  extend  to  the  regulation  of  the  carriage  of  tele- 
graphic messages  in  the  case  of  Western  Union  Telegraph  Co. 
V.  Texas. ^^  The  regulation  of  the  transmission  of  wireless 
telegraphic  messages  has  in  recent  years  often  been  shown  to 
be  most  necessary,  particularly  for  the  preservation  of  life  and 
property  upon  the  sea. 

The  aerial  jurisdiction  is  thus  held  to  reside  in  the  state 
having  the  jurisdiction  over  the  land  and  water  below. 

The  regulations  in  regard  to  the  use  of  wireless  telegraphy 
on  the  high  seas  have  also  shown  a  tendency  on  the  part  of 
states  to  assume  a  control  of  the  atmosphere  above  the  high 
seas  similar  to  that  assumed  over  the  high  seas  in  establishing 
other  regulations  generally  advantageous. 

The  exact  limits  of  aerial  jurisdiction  are  not  yet  deter- 
mined. The  Institute  of  International  Law  in  1906  enunciated 
the  principle,  "The  air  is  free,"  and  limited  the  rights  of  the 
states  in  the  air  to  such  as  were  necessary  to  self-preserva- 
tion, whether  in  peace  or  war.  If  this  is  interpreted  in  the 
strict  sense,  it  would  correspond  to  the  rights  of  a  state  upon 
the  high  seas.  It  is  evident,  from  the  physical  relationship  of 
the  atmosphere  to  the  earth  below,  that  the  analogy  does  not 
hold  in  all  respects.  A  ship,  becoming  disabled  upon  the  high 
seas  and  sinking,  might  bring  no  risk  to  the  life  and  property 
of  the  state  nearest  which  it  might  at  the  time  be  sailing.  A 
ship,  becoming  disabled  in  the  air  and  sinking  to  the  earth 
below,  would  bring  danger  to  the  life  and  property  of  the  state 

.^eiguements  relatifs  a  la  conduite  des  liostilites,  pouiTont  etre  ecar- 
tes  de  la  zone  d'operations  et  leurs  appareils  saisis  et  sequestros. 

Art.  8.  L'Etat  neutre  n'est  pas  oblige  de  s'opposer  au  passage  au- 
dessus  de  son  territoire  d'ondes  bertziennes  destinees  a  un  pays  en 
guerre. 

Art.  9.  L'liltat  neutre  a  le  droit  et  le  devoir  de  fermer  ou  de 
prendre  sous  son  administration  I'etablissement  d'un  Etat  bolligerant 
qu'il  avait  autorise  a  fonctionner  sur  son  territoire. 

Art.  10.  Toute  interdiction  de  communiquer  par  la  telegraphie 
sans  fil,  formulee  par  les  belligerants,  doit  etre  immediatement  noti- 
fiee  par  eux  aux  gouvernements  neutres. 

21  Annuarie  de  I'lnstitut,  p.  327. 

63  105  U.  S.  460,  26  L.  Ed.  1067. 


124  JIUISDICTION.  (Cll.  4 

above  wliicli  it  might  at  the  time  be  passing.  It  is  probable 
that  for  the  control  of  aerial  navigation  somewhat  different 
regulations  may  be  necessary  than  for  the  regulation  of  wire- 
less telegraphy,  which  the  Institute  of  International  Law  had 
particularly  under  consideration  in  1906. 

It  would  certainly  be  difficult  to  maintain  that,  in  a  contigu- 
ous area  not  within  the  jurisdiction  of  any  state,  a  stale  would 
have  no  right  of  jurisdiction,  though  an  act  within  this  area 
might  bring  to  the  state  serious  consequences.  What  these 
rights  are  may  be  inferred  from  analogy  to  rights  of  jurisdic- 
tion already  accepted.  Nys,  after  mentioning  that  the  develop- 
ment of  the  principles  of  maritime  jurisdiction  follows  the 
fundamental  principles  of  land  jurisdiction,  says  that,  "to  the 
extent  that  'the  conquest  of  the  air'  is  made  and  'aerial  navi- 
gation' progresses,  the  principles  of  'aerial  law'  will  be  derived 
from  the  fundamental  principles  of  maritime  law."  ^*  The 
extension  of  the  principles  of  maritime  law  may  not  always 
be  sufficient.^^  Certain  writers,  following  this  analogy,  would 
limit  the  qualified  jurisdiction  of  the  air  to  the  actual  range 
of  projectiles  from  the  surface  of  the  earth.  There  is  to  be 
remembered  in  this  proposition  that,  while  the  place  of  de- 
parture of  the  projectile  from  the  earth  may  be  known,  unless 
some  special  form  of  projectile  is  used,  its  return  to  the  earth's 
surface  may  be  dangerous,  and  also  that  the  projectile  sent 
from  the  earth's  surface  is  acting  against  the  force  of  gravity, 
while  one  dropped  from  a  distance  above  is  acting  with  the 
force  of  gravity.  Some  would  deny  the  free  use  of  the  air 
within  5,000  feet  of  the  earth's  surface  to  the  public  ships  of 
foreign  states.^ ^  Others  would  admit  free  use  in  time  of  peace, 
subject  to  police  regulations,  but  extend  the  restraint  in  time  of 
war.^^ 

C4  1  Xys,  Le  droit  interuationnl,  p.  524. 
5  5  Meurer,  Luftscliiffartsrecht,  p.  5. 

56  Fauchille,  19  Annuaire  de  I'lnstitut  de  Droit  International,  p.  34. 
5  7  Merii,'nhae,  Lois  et  Coutumes  de  la   Guerre  sur  Terre,  p.  I'JG; 
Scliolz,  Dralitlose  Telegrapliie  uud  Neutralitiit,  p.  19. 


§  44)  JURISDICTION    OVER    PERSONS.  125 


JURISDICTION   OVER    PERSONS— NATIONALS. 

44.    Nationals  are  persons  •who  ow^e  allegiance  to  a  state  and 
are  entitled  to  its  protection. 

In  the  discussions  of  the  jurisdiction  over  persons,  the  words 
■■"citizen,"  "subject,"  "person  within  the  jurisdiction  of  a  state," 
have  been  used  in  so  many  different  senses  that  in  recent  years 
the  word  "national"  has  been  introduced  as  the  term  to  desig- 
nate those  who  owe  allegiance  to  and  are  entitled  to  the  pro- 
tection of  a  given  state.  The  conditions  requisite  for  citizen- 
ship are  of  significance  to  other  branches  of  public  law,  rather 
than  to  international  law. 

Over  its  nationals  within  its  own  jurisdiction  a  state  has 
full  authority.  This  jurisdiction  extends,  not  merely  to  its 
domain,  but  to  the  ships  under  its  flag  on  the  high  seas. 

Over  its  nationals  within  foreign  jurisdiction  a  state  has  a 
qualified  jurisdiction,  varying  according  to  circumstances  and 
according  to  the  law  and  practice  of  the  foreign  state. 

Over  its  nationals  when  in  a  foreign  port  on  vessels  flying 
its  flag,  for  acts  beginning  and  ending  on  board  the  vessel,  or 
for  acts  which  do  not  take  effect  outside  the  vessel,  a  state  has, 
in  general,  jurisdiction. 

Certain  persons  are  by  practice  exempt  from  foreign  juris- 
diction, and  under  the  authority  of  the  state  to  which  they  owe 
allegiance,  as  in  case  of  a  diplomat  and  the  persons  connected 
with  the  suite  of  a  diplomat. 

States  sometimes  claim  authority  over  their  nationals  so- 
journing within  a  foreign  jurisdiction.  Claim  to  authority  to 
call  home  nationals  who  may  be  abroad  in  time  of  war  has 
been  made  from  time  to  time.  Claim  to  authority  to  punish 
nationals  for  crimes  committed  abroad  has  been  admitted. 

Many  phases  of  the  jurisdiction  over  nationals  belong  to  the 
field  of  "Conflict  of  Laws,"  or  "International  Private  Law." 
Other  phases  of  the  subject  will  be  treated  in  Part  III,  "Inter- 
course of  States,"  and  under  appropriate  sections  elsewhere. 


126  JURISDICTION.  (Ch.  4 


ACQUISITION    OF   NATIONALITY. 

45.  Nationality  may  be  determined  by  place  of  birth,  jus  soli; 
by  the  nationality  of  the  parents,  jus  sanguinis;  or  by 
some  form  of  naturalization.'' i^ 

While  nationality  is  not  determined  by  international  law,  its 
determination  is  often  a  subject  of  international  negotiation; 
indeed,  few  subjects  have  given  rise  to  so  many  diplomatic 
controversies.  The  laws  determining  nationality  in  different 
states  are  unlike,  and  sometimes  there  are  different  methods 
of  determination  within  the  same  state. °^ 

The  United  States  laws  provide  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the  state 
wherein  they  reside."  ^^  Here  the  jus  soli  is  followed.  Great 
Britain  and  South  American  states  generally  follow  jus  soli. 

The  United  States  law  also  provides  that  "all  children  here^ 
tofore  born  or  hereafter  born  out  of  the  limits  and  jurisdiction 
of  the  United  States,  whose  fathers  were  or  may  be  at  the 
time  of  their  birth  citizens  thereof,  are  declared  to  be  citizens 
of  the  United  States ;  but  the  rights  of  citizenship  shall  not 
descend  to  children  whose  fathers  never  resided  in  the  United 
States."  ®^  Here  the  jus  sanguinis  is  followed;  but  the  father 
must  be  a  citizen  of  the  United  States  at  the  time  of  the  birth 
of  the  child,  and  must  have  resided  in  the  United  States.  By 
the  act  of  March  2,  1907,  children,  born  of  American  parents 
resident  abroad,  who  continue  to  reside  abroad,  in  order  to  re- 
ceive the  protection  of  the  United  States  must  "upon  reaching 
the  age  of  eighteen  years  record  at  an  American  consulate 
their  intention  to  become  residents  and  remain  citizens  of  the 
United  States  and  shall  be  further  required  to  take  the  oath 

58  For  full  treatment  of  United  States  practice  see  Van  Dyne,  Nat- 
uralization in  the  United  States. 

5  9  By  Act  June  29,  190G,  the  United  States  established  a  Bureau 
of  Naturalization  in  the  Department  of  Commerce  and  Labor.  34 
Stat.  .596  (U.  S.  Comp.  St.  Supp.  1909,  p.  477). 

60  Const.  U.  S.  Amend.  14.  See,  also,  Foreign  Relations  U.  S.  1901, 
p.  303;   Great  Britain,  Act  May  12,  1870,  art.  4. 

61  Rev.  St.  §  1993  (U.  S.  Comp.  St.  1901,  p.  1268). 


§  45)  ACQUISITION    OF   NATIONALITY.  127 

of  allegiance  to  the  United  States  upon  attaining  their  majori- 
ty." The  race,  residence,  or  status  of  the  mother  does  not  af- 
fect the  status  of  the  child,  provided  only  the  father  is  a  citizen 
at  the  time  of  the  child's  birth. ®^ 

Foundlings  are  regarded  as  nationals  of  the  state  in  which 
they  are  found.  An  illegitimate  child,  born  within  the  state  of 
which  the  mother  is  a  subject,  is  a  national  of  that  state.  It 
has  been  held  that  an  illegitimate  child  born  abroad  to  an 
American  woman  is' not  entitled  to  United  States  citizenship."* 

As  some  other  states  follow  the  jus  soli,  and  some  the  jus 
sanguinis,  and  some,  like  the  United  States,  follow  both,  there 
has  grown  up  the  practice  of  allowing  the  child  born  abroad 
to  elect  his  allegiance  upon  attaining  his  majority.  Certain 
states,  however,  require  in  case  of  renunciation,  not  merely 
that  citizenship  be  renounced  by  the  child,  but  also  that  the 
renunciation  be  accepted  by  the  state  of  which  the  parents  are 
nationals.^* 

Naturalization  is  the  act  conferring  on  a  foreigner  the  status 
of  a  national. 

Naturalization  may  be  (a)  by  general  law;  (b)  by  marriage; 
(c)  through  act  of  parent;  (d)  through  general  transfer  of 
allegiance  by  treaty  of  cession,  purchase,  etc. ;  (e)  through  the 
transfer  of  allegiance  by  conquest;  (f)  in  consequence  of  cer- 
tain special  service,  etc.;  (g)  by  admission  of  new  territory 
into  a  state;    (h)  by  special  act  of  legislation;    (i)  by  election. 

(a)  The  laws  in  regard  to  the  acquisition  of  nationality  vary 
greatly  in  different  states.  In  general,  they  require  a  renuncia- 
tion of  allegiance  to  the  parent  state  and  an  oath  of  allegiance 
to  the  adopted  state.®" 

62  Foreign  Relations  U.  S.  1903,  p.  45. 

6  3  Guyer  v.  Smith,  22  Md.  239.  85  Am.  Dec.  6.50. 

64  Swiss  Law,  July  3,  1876.  The  jus  sanguinis  is  also  followed  by 
Austria,  Civil  Code,  art.  23 ;  Hungary,  Law  Dec.  24,  1879 ;  Germany, 
Law  June  1,  1870 ;    Sweden,  Law  Feb.  5,  1858. 

6  3  In  the  United  States  the  act  of  Congress  of  June  29,  1906,  pro- 
vides in  section  4: 

"That  an  alien  may  be  admitted  to  become  a  citizen  of  the  United 
States  in  tlie  following  manner  and  not  otherwise: 

"First.  He  shall   declare  on   oath  before   the  clerk   of  any  court 


128  JURISDICTION.  (Cb.  -1 

(b)  In  general,  a  woman  by  marriage  acquires  tbe  national- 
ity of  her  husband,  though  this  does  not   follow   unless   she 

autliorized  by  this  act  to  naturalize  aliens,  or  his  authorized  deputy, 
in  the  district  in  which  such  alien  resides,  two  years  at  least  prior 
to  his  admission,  and  after  he  has  reached  the  age  of  eighteen  years, 
that  it  is  bona  fide  his  intention  to  become  a  citizen  of  the  United 
States,  and  to  renounce  forever  all  allegiaufe  and  fidelity  to  any  for- 
eign prince,  potentate,  state,  or  sovereignty,  and  particularly,  by 
name,  to  the  prince,  potentate,  state,  or  sovereignty  of  which  the 
alien  may  be  at  the  time  a  citizen  or  subject.     *     •     * 

"Second.  Not  less  than  two  years  nor  more  than  seven  years  after 
he  has  made  such  declaration  of  intention  he  shall  make  and  tile,  in 
duplicate,  a  petition  in  writing.  *  •  *  The  petition  shall  set  forth 
that  he  is  not  a  disbeliever  in  or  opposed  to  organized  government, 
or  a  member  of  or  affiliated  with  any  organization  or  body  of  per- 
sons teaching  disbelief  in  or  opposed  to  organized  government,  a  po- 
lygamist  or  believer  in  the  practice  of  polygamy,  and  that  it  is  his 
intention  to  become  a  citizen  of  the  United  States  and  to  renounce 
absolutely  and  forever  all  allegiance  and  fidelity  to  any  foreign  prince. 
^     *     * 

"Third.  He  shall,  before  he  is  admitted  to  citizenship,  declare  on 
oath  in  open  court  that  he  will  support  the  Constitution  of  the  United 
States,  and  that  he  absolutely  and  entirely  renounces  and  abjures 
all  allegiance  and  fidelity  lo  any  foreign  prince,  potentate,  state,  or 
sovereignty,  and  particularly  by  name  to  the  prince,  potentate,  state, 
or  sovereignty  of  which  he  was  before  a  citizen  or  subject;  that  he 
will  support  and  defend  the  Constitution  and  laws  of  the  United 
States  against  all  enemies,  foreign  and  domestic,  and  bear  true  faith 
and  allegiance  to  the  same. 

"Fourth.  It  shall  be  made  to  appear  to  the  satisfaction  of  the  court 
admitting  any  alien  to  citizenship  that  immediately  preceding  the 
date  of  his  application  he  has  resided  continuously  within  the  United 
States  five  years  at  least,  and  within  the  state  or  territory  where 
such  court  is  at  the  time  held  one  year  at  least,  and  that  during  that 
time  he  has  behaved  as  a  man  of  good  moral  character,  attached  to 
the  principles  of  the  Constitution  of  the  United  States,  and  well  dis- 
posed to  the  good  order  and  happiness  of  the  same.  In  addition  to 
the  oath  of  the  applicant,  the  testimony  of  at  least  two  witnesses, 
citizens  of  the  United  States,  as  to  the  facts  of  residence,  moral  char- 
acter, and  attachment  to  the  principles  of  the  Constitution  shall  be 
required,  and  the  name,  place  of  residence,  and  occupation  of  each 
witness  shall  be  set  forth  in  the  record. 

"Fifth.  In  case  the  alien  applying  to  be  admitted  to  citizenship  has 
borne  any  hereditary  title,  or  has  been  of  any  of  the  orders  of  nobility 
in  the  kingdom  or  state  from  which  he  came,  he  shall,  in  addition 
to  the  above  requisites,  make  an  express  renunciation  of  his  title  or 


§  45)  ACQUISITION    OF    NATIONALITY,  129 

would  in  her  own  right  be  entitled  to  obtain  such  nationality.^" 
If  a  United  States  citizen  should  marry  a  Chinese  woman,  the 
Chinese  woman  would  not  thereby  acquire  United  States  citi- 
zenship, though  their  children  would  follow  the  nationality  of 
the  father.^^  In  some  states  it  is  made  easier  for  a  foreigner 
who  has  married  a  native  woman  to  acquire  the  citizenship  of 
his  wife.®^ 

.  By  the  act  of  March  2,  1907  (U.  S.  Comp.  St.  Supp.  1909,  p. 
439),  an  American  woman  who  marries  a  foreigner  takes  his 
nationality.  On  the  termination  of  the  marital  relation,  if 
abroad,  she  may  by  registering  before  a  United  States  consul 
within  one  year  resume  her  American  citizenship,  or  on  return- 
ing to  reside,  or  if  residing  in  the  United  States,  American 
citizenship  is  resumed  by  continuing  to  reside  therein. 

By  the  same  act  a  foreign  woman  who  acquires  American 
nationality  by  marriage  to  an  American  citizen  retains  the 
same  after  termination  of  the  marital  relation,  if  she  continues 
to  reside  in  the  United  States  and  does  not  formally  renounce 
the  same,  or  if  residing  abroad  she  may  retain  United  States 

order  of  nobility  iu  the  court  to  wbicli  liis  application  is  made,  and 
his  renunciation  shall  be  recorded  in  the  court. 

"Sixth.  When  any  alien  who  has  declared  his  intention  to  become 
a  citizen  of  the  United  States  dies  before  he  is  actually  naturalized 
the  widow  and  minor  children  of  such  alien  may,  by  complying  with 
the  other  provisions  of  this  act,  be  naturalized  without  making  any 
declaration  of  Intention." 

34  Stat.  596  (U.  S.  Comp.  St.  Supp.  1909,  p.  478). 

6  6  "Any  foreign  woman  who  acquires  American  citizenship  by  mar- 
riage to  an  American  shall  be  assumed  to  retain  the  same  after  the 
termination  of  the  marital  relation  if  she  continue  to  reside  in  the 
United  States,  unless  she  makes  formal  renunciation  thei'eof  before 
a  court  having  jurisdiction  to  naturalize  aliens,  or  if  she  resides 
abroad  she  may  retain  her  citizenship  by  registering  as  such  before 
a  United  States  consul  within  one  year  after  the  termination  of  such 
marital  relation."  Act  March  2,  1907,  §  4  (U.  S.  Comp.  St.  Supp. 
1909,  p.  439).  Whenever  a  foreign  woman  marries  an  American  and 
is  abroad  when  the  marital  relation  is  terminated,  she  must  register 
as  an  American  citizen  before  an  American  consul  within  one  year. 

6T  Rev.  St.  §  1994  (U.  S.  Comp.  St.  1901,  p.  12GS):  "Any  woman 
who  is  now  or  may  hereafter  be  mai'ried  to  a  citizen  of  the  United 
States,  and  who  might  herself  be  lawfully  naturalized,  shall  be 
deemed  a  citizen." 

6  8  Belgium,  Law  of  Aug.  G,  1881;    France,  Law  of  June  26,  1889. 

WiLS.lNT.L.— 9 


ir?0  JURISDICTION.  (Ch.  4 

citizenship  by  registering  before  an  American  consul  witliin 
one  year.*'^ 

(c)  Naturalization  of  the  parents  ordinarily  confers  upon 
minor  children  the  nationality  acquired  by  the  parents,  though 
it  may  be  under  conditions.  The  United  States  law  contains  a 
clause  restricting  such  acquisition  of  nationality  to  children 
"under  twenty-one  years  of  age  at  the  time  of  naturalization 
of  their  parents"  and  "dwelling  in  the  United  States."  ""^    The 

6  9  Britisli  Naturalization  Act,  1S70,  provides  iu  section  10  for  read- 
mission: 

"National  Status  of  Married  Women  and  Infant  Children. 

"10.  The  following  enactments  shall  be  made  with  respect  to  the 
national  status  of  women  and  children: 

"(1)  A  married  woman  shall  be  deemed  to  be  a  subject  of  the  state 
of  which  her  husband  is  for  the  time  being  a  subject. 

"(2)  A  widow  being  a  natural-born  British  subject,  who  has  become 
an  alien  by  or  in  consequence  of  her  marriage,  shall  be  deemed  to  be 
a  statutory  alien,  and  may  as  such  at  any  time  during  widowhood 
obtain  a  certificate  of  readmission  to  British  nationality  in  manner 
provided  by  this  act. 

"(3)  Where  the  father  being  a  British  subject,  or  the  mother  being 
a  British  subject  and  a  widow,  becomes  an  alien  in  pursuance  of  this 
act,  every  child  of  such  father  or  mother  who  during  infancy  has 
become  resident  in  the  country  where  the  father  or  mother  is  nat- 
uralized, and  has,  according  to  the  laws  of  such  country,  become 
naturalized  therein,  shall  be  deemed  to  be  a  subject  of  the  state  of 
which  the  father  or  mother  has  become  a  subject,  and  not  a  British 
subject. 

"(4)  Wliere  the  father,  or  the  mother  being  a  widow,  has  obtained 
a  certificate  of  readmission  to  British  nationality,  every  child  of  such 
father  or  mother  who  during  infancy  has  become  resident  in  the 
British  dominions  with  such  father  or  mother,  shall  be  deemed  to 
have  resumed  the  position  of  a  British  subject  to  all  intents. 

'■(5)  Where  the  father,  or  the  mother  being  a  widow,  has  obtained 
a  certificate  of  naturalization  in  the  United  Kingdom,  every  child  of 
such  father  or  mother  who  during  infancy  has  become  resident  with 
such  father  or  mother  in  any  part  of  the  United  Kingdom,  shall  be 
doomed  to  be  a  naturalized  British  subject " 

7  0  Rev.  St.  §  2172  (U.  S.  Comp.  St.  1901,  p.  1334):  "The  children  of 
persons  who  have  been  duly  naturalized  under  any  law  of  the  United 
States,  or  who  previous  to  the  passing  of  any  law  on  that  subject, 
by  the  government  of  the  United  States,  *  *  *  being  under  the 
age  of  twenty-one  years  at  the  time  of  the  naturalization  of  their 


§  45)  ACQUISITION    OP   NATIONALITY.  131 

words  "dwelling  in  the  United  States"  do  not  necessarily  mean 
dwelling-  in  the  United  States  at  the  time  of  the  parent's  nat- 
uralization, but  "either  at  the  time  of  the  father's  naturaliza- 
tion or  afterwards  during  the  child's  minority."  '^^  The  doubt 
as  to  the  operation  of  certain  clauses  of  sections  of  the  law 
mentioned  above  was  removed  by  section  5  of  the  act  of  March 
2,  1907  (U.  S.  Comp.  St.  Supp.  1909,  p.  410),  which  provides: 
"That  a  child  born  without  the  United  States  of  alien  parents 
shall  be  deemed  a  citizen  of  the  United  States  by  virtue  of  the 
naturalization  of  or  resumption  of  American  citizenship  by  the 
parent:  Provided,  that  such  naturalization  or  resumption 
takes  place  during  the  minority  of  such  child :  And  provided 
further,  that  the  citizenship  of  such  minor  child  shall  begin  at 
the  time  such  minor  child  begins  to  reside  permanently  in  the 
United  States."  ' 

(d)  Transfer  of  territory  by  treaty  usually  transfers  the 
political  allegiance  of  the  inhabitants  of  the  territory.  Inhab- 
itants of  a  territory  thus  transferred  are  often  allowed  a  rea- 
sonable time  in  which  to  withdraw,  if  they  do  not  wish  to  ac- 
cept the  nationality  of  the  new  jurisdiction.  Later  treaties 
usually  make  provision  for  the  transfer  of  nationality.'^-  The 
same  is  true  of  some  of  the  earlier  treaties,  as  in  the  treaty  of 
Utrecht  of  1713.  Treaties  transferring  territory  by  exchange, 
sale,  voluntary  cession,  cession  as  a  result  of  war,  etc.,  ordi- 

parents,  shall,  If  dwelling  in  the  United  States,  be  considered  as 
citizens  thereof." 

71  Foreign  Relations  U.  S.  1900.  p.  527. 

The  American  position  in  r<?gard  to  minor  children  of  a  natu- 
ralized alien  is  reviewed  in  Zaratarian  v.  Billings,  204  U.  S.  170,  27 
Sup.  Ct.  182,  51  L.  Ed.  428.  See,  also,  3  Moore,  §  413,  particularly 
the  Case  of  Heisinger. 

72  Article  III  of  the  treaty  ceding  Louisiana  to  the  United  States 
in  1803  provides:  "The  inhabitants  of  the  ceded  territory  shall  be 
incorporated  in  the  Union  of  the  United  States  and  admitted  as  soon 
as  possible  according  to  the  principles  of  the  federal  Constitution 
to  the  enjoyment  of  all  the  rights,  advantages  and  inmiunities  of 
citizens  of  the  United  States ;  and  in  the  mean  time  they  shall  be 
maintained  and  protected  in  the  free  enjoyment  of  their  liberty, 
property  and  the  religion  which  they  profess." 

The  treaty  ceding  Alaska  to  the  United  States  allowed  three  years 
for  the  inhabitants  to  determine  their  allegiance.  Article  III,  Treaty 
March  30,  1SG7. 


i:{2  JURISDICTION.  (Ch.  4 

narily  contain  specific  clauses  upon  the  transfer  of  nationality.'^' 
The  transfer  of  nationality  does  not  imply  the  grant  of  the 
right  to  vote  or  other  rights  which  may  be  reserved  to  citizens 
in  the  narrower  sense,  as  is  formally  agreed  in  the  treaty  ter- 
minating the  Spanish-American  War  of  1898. ''* 

"3  The  treaty  of  peace  between  the  United  States  and  Mexico  In 
1848  (treaty  of  Guadalupe  Hidalgo)  provided: 

"Article  VIII.  Mexicans  now  established  in  territories  previously 
belonging  to  IMexico,  and  which  remain  for  the  future  within  the 
limits  of  the  United  States  as  defined  by  the  present  treaty,  shall 
be  free  to  continue  where  they  now  reside,  or  to  remove  at  any  time 
to  the  Mexican  Republic,  retaining  the  property  which  they  possess 
in  the  said  territories,  or  disposing  thereof  and  removing  the  pro- 
ceeds wherever  they  please ;  without  their  being  subjected,  on  this 
account,  to  any  contribution,  tax  or  charge  whatever. 

'"Those  who  shall  prefer  to  remain  in  the  said  territories,  may 
either  retain  the  title  and  rights  of  Mexican  citizens,  or  acquire  those 
of  citizens  of  the  United  States.  But,  they  shall  be  under  the  obli- 
gation to  make  their  election  within  one  year  from  the  date  of  the 
exchange  of  ratifications  of  this  treaty ;  and  those  who  shall  remain 
in  the  said  territories,  after  the  expiration  of  that  year,  without  hav- 
ing declared  their  intention  to  retain  the  character  of  Mexicans, 
shall  be  considered  to  have  elected  to  become  citizens  of  the  United 
States. 

"In  the  said  territories,  property  of  every  kind,  now  belonging  to 
Mexicans  not  established  there,  shall  be  inviolably  respected.  The 
present  owners,  the  heirs  of  these,  and  all  Mexicans  who  may  here- 
after acquire  said  property  by  contract,  shall  enjoy  with  respect  to 
it,  guarantees  equally  ample  as  if  the  same  belonged  to  citizens  of 
the  United  States. 

"Article  IX.  The  Mexicans  who,  in  the  territories  aforesaid,  shall 
not  preserve  the  character  of  citizens  of  the  Mexican  Republic,  con- 
formably with  what  is  stipulated  in  the  preceding  article,  shall  be 
incorporated  into  the  Union  of  the  United  States  and  be  admitted  at 
the  proper  time  (to  be  judged  of  by  the  Congress  of  the  United 
States)  to  the  eujoj^ment  of  all  the  rights  of  citizens  of  the  United 
States  according  to  the  principles  of  the  Constitution ;  and  in  the 
mean  time  shall  be  maintained  and  protected  in  the  free  enjoyment 
of  their  liberty  and  proi>erty,  and  secured  in  the  free  exercise  of  their 
religion  without  restriction." 

These  provisions  were  reaffirmed  in  the  Gadsden  Purchase  Treaty 
of  1853,  article  V. 

74  "Article  IX.  Spanish  subjects,  natives  of  the  Peninsula,  residing 
in  the  territory  over  which  Spain  by  the  present  treaty  relinquishes 
or  cedes  her  sovereignty,  may  remain  in  such  territory  or  may  remove 
therefrom,  retaining  in   either  event   all   their   rights  of  property, 


§  45)  ACQUISITION    OF    NATIONALITY.  133 

(e)  Lacking  treaty  or  other  agreement,  the  inhabitants  of 
territory  acquired  by  conquest  are  regarded  as  of  the  national- 
ity of  the  conquering  state.  The  conquering  state  may  deter- 
mine the  stc.tus  of  the  inhabitants  of  the  conquered  territory. 
It  is  evident  that  this  would  be  necessary,  if  the  former  gov- 
ernment should  be  entirely  overthrown  as  a  result  of  the  war, 
or  if  the  former  government  should  refuse  to  make  any  agree- 
ment in  regard  to  the  transfer.'^ '^ 

(f)  The  acquisition  of  nationality  is  frequently  made  easier 
for  foreigners  who  have  rendered  military,  naval,  or  other 
service  to  a  state.  The  United  States  laws  permit  an  alien  of 
legal  age  who  has  rendered  honorable  military  service  to  the 
United  States  to  become  a  citizen  after  one  year  of  residence.^' 
Previous  declaration  is  not  required  of  aliens  who  have  honor- 
ably served  five  years  in  the  Navy  or  Marine  Corps.'' ^  Provi- 
sion is  made  for  the  admission  of  aliens  serving  as  merchant 
seamen  three  years  after  declaration  of  intention,  instead  of 
five.^« 

(g)  Territory  previously  outside  the  jurisdiction  of  any  rec- 
ognized state  may  be  taken  within  the  jurisdiction  of  a  state. 
The  inhabitants  of  such  territory  are  generally  entitled  to  the 
protection  of  and  owe  allegiance  to  the  state  within  which 


including  the  right  to  sell  or  dispose  of  such  property  or  of  its 
proceeds ;  and  they  shall  also  have  the  right  to  carry  on  their  indus- 
try, commerce  and  professions,  being  subject  in  respect  thereof  to 
such  laws  as  are  applicable  to  other  foreigners.  In  case  they  remain 
in  the  territory  they  may  preserve  their  allegiance  to  the  crovpn  of 
Spain  by  making,  before  a  court  of  record,  within  a  year  from  the 
date  of  the  exchange  of  ratifications  of  this  treaty,  a  declaration  of 
their  decision  to  preserve  such  allegiance;  in  default  of  which  dec- 
laration they  shall  be  held  to  have  renounced  it  and  to  have  adopted 
the  nationality  of  the  territory  in  which  they  may  reside. 

"The  civil  rights  and  political  status  of  the  native  inhabitants  of 
the  territories  hereby  ceded  to  the  United  States  shall  be  determined 
by  the  Congress." 

See,  also,  the  Insular  Decisions,  182  U.  S.  1-391,  21  Sup.  Ct.  742, 
743.  762,  770,  827,  45  L.  Ed.  1041,  1065,  1074,  1086,  1088. 

7  5  Downes  v.  Bidwell,  182  U.  S.  300,  21  Sup.  Ct.  770,  45  L.  Bd.  1088. 

7  6  Rev.  St.  §  2166  (U.  S.  Comp.  St.  1901,  p.  1331). 

7  7  28  Stat.  124,  c.  165. 

7  8  Rev.  St.  §  2174  (U.  S.  Comp.  St.  1901,  p.  1334). 


134  JURISDICTION,  (Cll.  4 

they  may  thus  come.  This  has  been  recognized  in  varying  de- 
grees in  the  protectorates  established  in  Africa.'^® 

Territory  which  forms  a  part  or  the  whole  of  a  political 
unity  may  be  admitted  as  a  part  of  an  existing  state.  Provi- 
sion may  be  made  in  such  case  for  the  granting  of  the  na- 
tionality of  the  receiving  state  to  the  inhabitants,  even  though 
the  rights  previously  existing  are  in  large  measure  retained. 
By  the  act  of  Congress  of  April  30,  1900,  "providing  a  govern- 
ment for  the  territory  of  Hawaii,"  annexed  to  the  United 
States  by  a  joint  resolution  of  July  7,  1898,  it  was  provided 
that  persons  who  were  citizens  of  the  Republic  of  Hawaii  on 
August  12,  1898,  were  "citizens  of  the  United  States  and  citi- 
zens of  the  territory  of  Hawaii,"  and  also  that  all  citizens  of 
the  United  States  resident  in  the  Hawaiian  Islands  August  12, 
1898,  and  "all  citizens  of  the  United  States  who  shall  hereafter 
reside  in  the  territory  of  Hawaii  for  one  year,  shall  be  citizens 
of  the  territory  of  Hawaii."  ^° 

(h)  Naturalization  of  individuals  of  groups  may  be  by  spe- 
cial act  of  legislation.  Mrs.  Sartoris  was  in  1898  admitted  to 
United  States  citizenship  by  joint  resolution  of  Congress.^ ^ 
Tribes  or  larger  groups  of  Indians  have  also  been  admitted  to 
United  States  citizenship  by  special  act.^^  Many  treaties  for 
the  reciprocal  acknowledgment  of  naturalization  were  asrreed 
upon  about  1870.«» 


"9  Britisli  South  Africa  Order  in  Council,  1S91. 

80  31  Stat.  141.  See  case  of  status  of  Chinaman  born  In  Hawaiian 
Islands,  Foreign  Relations  U.  S.  1905,  p.  735. 

81  "Resolved  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  that  Nellie  Grant 
Sartoris,  daughter  of  General  Ulysses  S.  Grant,  be,  and  she  is  here- 
by, on  her  own  application,  unconditionally  readmitted  to  the  char- 
acter and  privileges  of  a  citizen  of  the  United  States,  in  accordance 
with  the  provisions  of  article  third  of  the  convention  relative  to 
naturalization  between  the  United  States  and  Great  Britain  con- 
cluded May  thirteenth,  eighteen  hundred  and  seventy."    30  Stat.  14iH>. 

8  2  31  Stat.  1447. 

83  The  Treaty  of  September  20,  1870,  between  the  United  States 
and  Austria-Hungary  provides: 

"Article  I.  Citizens  of  the  Austro-Hungarian  monarchy  who  have 
resided  in  the  United  States  of  America  uninterruptedly  at  least  five 
years,  and  during  such  residence  have  become  naturalized  citizens  of 


§  46)  EXPATRIATION.  135 

(i)  By  jus  sanguinis,  followed  by  the  United  States,  the 
child  of  an  American  father,  though  born  abroad,  ordinarily 
would  acquire  his  father's  nationality.  Other  states  follow  the 
same  rule.  Certain  states,  including  the  United  States,  also 
follow  the  jus  soli,  by  which  children  born  within  the  state 
acquire  the  nationality  of  the  place  of  birth.  There  might, 
therefore,  be  a  conflict  as  to  allegiance.  To  obviate  this  it  has 
become  customary  to  allow  the  child  born  abroad  to  elect,  on 
arriving  at  majority,  whether  he  will  assume  the  nationality  of 
the  place  of  birth  or  of  his  parentage. 

EXPATRIATION. 

46.    Expatriation  is  the  renunciation  or  abandonment  of  na- 
tionality. 

The  doctrine  of  perpetual  or  mdehble  allegiance  has  been 
maintained  by  many  states.  There  was  much  difference  of 
opinion  in  the  United  States^*  in  regard  to  the  right  of  ex- 
patriation, till  by  an  act  of  July  27,  1868,  restrictions  upon  the 
right  of  expatriation  were  "declared  inconsistent  with  the 
fundamental  principles  of  this  government."  Great  Britain 
had  for  many  years  particularly  maintained  the  doctrine  of  in- 
alienable allegiance.    This  was  distinctly  renounced  in  1870.^' 

It  is  now  recognized  that  citizenship  may  be  forfeited  by 
naturalization  in  a  foreign  state,  by  marriage  to  a  foreigner  in 
case  of  a  woman,  by  entering  the  military  service  of  a  foreign 
state,  by  certain  other  service  involving  the  taking  of  an  oath 
of  allegiance,  by  desertion  from  the  army  or  navy,  by  long- 
continued  residence  abroad,  or,  in  case  of  naturalized  citizens, 
by  residence  abroad  for  a  shorter  period.  Not  all  states  are 
agreed  upon  these  grounds  of  expatriation  or  forfeiture  of 
citizenship.  The  United  States  has  maintained  that  service  in 
a  foreign  army  does  not  necessarily  forfeit  citizenship.  The 
Netherlands  law  holds  a  citizen  expatriated  if  he  enters  for- 

tlie  United  States  shall  be  held  by  the  government  of  Austria  and 
Hungary  to  be  American  citizens,  and  shall  be  treated  as  such." 

84  3  Moore,  §  431,  ff. ;    Moore,  American  Diplomacy,  c.  VII. 

8  5  Act  Concerning  Aliens  and  British  Subjects,  May  12,  1870  (St. 
33  &  34  Vict.  105,  c.  14). 


136  JURISDICTION.  (Ch.  4 

eign  military  service  without  permission.  Some  states  main- 
tain that  residence  abroad  for  a  definite  period  forfeits  citizen- 
ship ;  others  require  proof  of  intention  to  remain.  German 
law  prescribes  that  ten  j'cars'  residence  abroad  may  forfeit 
German  nationality  and  possibly  render  a  German  heimatlos. 
The  United  States  has  frequently  demanded  proof  of  animus 
manendi. 

There  have  been  many  treaties  in  regard  to  expatriation.  A 
common  provision  of  such  treaties  is  to  prescribe  for  the  mu- 
tual recognition  of  naturalization  as  a  means  terminating  prior 
citizenship.  Citizenship  based  on  naturalization  may,  however, 
lapse  through  residence  abroad.  The  law  of  the  United  States 
of  March  2,  1907,®®  provides  in  general  that  two  years  of  resi- 
dence in  the  foreign  state  from  which  he  came,  or  five  years 
of  residence  in  any  other  foreign  state,  may  expatriate  a  nat- 
uralized citizen.®^ 

PROTECTION   OF   NATIONALS. 

47.    (a)    A  state  usually  extends  as  full  protection  as  possible 

to  its  native  nationals  in  foreign  states. 
Cb)    A  like  protection  is  extended  to  its  naturalized  nationals 

in  states  other  than  those  of  their  previous  allegiance, 
(c)    A  degree  of  protection  is  extended  to  those  xirho  through 

taking  steps  toivard  obtaining  its  citizenship  have  an. 

inchoate   right  of   nn,tionality  in  a  state,   even  though 

the  new  citizenship  is  not  yet  granted. 

(a)  While  a  state  usually  extends  as  full  protection  as  possi- 
ble to  its  native  nationals,  this  protection  may  be  conditioned 

8  8  Act  March  2,  1907,  34  Stat.  1228  (U.  S.  Comp  St.  Supp.  1905),  p. 
438).    See,  also,  Van  Dyne,  Naturalization  in  a  Foreig:n  State,  c.  V. 

ST  "When  any  naturalized  citizen  shall  have  resided  for  two  years 
in  the  foreign  state  from  which  he  came,  or  for  Ave  years  in  any 
other  foreign  state  it  shall  be  presumed  that  he  has  ceased  to  be  an 
American  citizen,  and  the  place  of  his  general  abode  shall  be  deemed 
his  place  of  residence  during  said  years:  Provided,  however,  that 
such  presumption  may  be  overcome  on  the  presentation  of  satisfac- 
tory evidence  to  a  diplomatic  or  consular  officer  of  the  United  States, 
under  such  rules  and  regulations  as  the  Department  of  State  may 
prescribe:  And  provided  also,  that  no  American  citizen  shall  be 
allowed  to  expatriate  himself  when  this  country  is  at  war."  34  Stat 
1228  (U.  S.  Comp.  St  Supp.  1909,  p.  438). 


§  47)  PROTECTION    OF    NATIONALS.  137 

upcn  the  acts  of  the  nationals  themselves.  The  limits  of  pro- 
tection of  native  nationals  abroad  depend  upon  the  laws  of  the 
foreign  state  and  upon  treaty  relations. 

The  rights  of  a  national  of  one  state  in  another  state  are 
usually  specified  in  treaty  agreement.  Article  II  of  the  Treaty 
of  July  3,  1902,  between  the  United  States  and  Spain  provides 
that: 

"There  shall  be  a  full,  entire  and  reciprocal  liberty  of  com- 
merce and  navigation  between  the  citizens  and  subjects  of  the 
two  high  contracting  parties,  who  shall  have  reciprocally  the 
right,  on  conforming  to  the  laws  of  the  country,  to  enter,  travel 
and  reside  in  all  parts  of  their  respective  territories,  saving  al- 
ways the  right  of  expulsion  which  each  government  reserves 
to  itself,  and  they  shall  enjoy  in  this  respect,  for  the  protection 
of  their  persons  and  their  property,  the  same  treatment  and  the 
same  rights  as  the  citizens  or  subjects  of  the  country  or  the 
citizens  or  subjects  of  the  most  favored  nation. 

"They  can  freely  exercise  their  industry  or  their  business, 
as  well  wholesale  as  retail,  without  being  subjected  as  to  their 
persons  or  their  property,  to  any  taxes,  general  or  local,  im- 
posts or  conditions  whatsoever,  other  or  more  onerous  than 
those  which  are  imposed  or  may  be  imposed  upon  the  citizens 
or  subjects  of  the  country  or  the  citizens  or  subjects  of  the 
most  favored  nation. 

"It  is,  however,  understood  that  these  provisions  are  not  in- 
tended to  annul  or  prevent,  or  constitute  any  exception  from 
the  laws,  ordinances  and  special  regulations  respecting  taxa- 
tion, commerce,  health,  police,  and  public  security,  in  force  or 
hereafter  made  in  the  respective  countries  and  applying  to 
foreigners  in  general." 

Nationals  of  a  foreign  state  cannot  claim  more  privileges 
than  the  subjects  of  the  state  in  which  they  are  for  the  time. 
As  the  foreign  state  has  relations  only  with  the  national  gov- 
ernment, the  national  government  cannot  disclaim  ordinary  re- 
sponsibility because  its  control  of  local  divisions  is  of  a  re- 
stricted character.  Instances  have  arisen  in  the  United  States 
in  which  the  jurisdiction  of  the  local  states  over  aliens  has  giv- 
en rise  to  complications  in  consequence  of  conflict  with  the 
national  jurisdiction.     Several  cases  of  lynching  have  taken 


138  JURISDICTION.  (Cb.  4 

place  in  certain  states.  In  some  instances  those  guilty  of  par- 
ticipation have  not  been  punished,  owing  to  the  impossibihty  of 
enforcing  the  penalties  through  the  local  courts,  which  have  ju- 
risdiction. Mr.  Flay,  Secretary  of  State  of  the  United  States, 
in  a  letter  to  Baron  Fava,  the  Ambassador  of  Italy,  in  regard  to 
the  lynching  of  certain  Italians  in  Tallulah,  Louisiana,  in  July, 
1899,  said  on  June  12,  1900  : 

"Excellency :  I  have  the  honor  to  acknowledge  the  receipt 
of  your  excellency's  esteemed  favor  of  May  6  in  relation  to 
the  cruel  lynching  at  Tallulah. 

"In  answer  to  your  inquiry  as  to  'what  measures  the  federal 
government  intends  to  take  in  order  to  settle  this  unfortunate 
matter,'  and  to  the  assurance  of  your  faith  in  the  efficient  ac- 
tion of  the  Department  for  the  prevention  in  future  of  any 
repetition  of  such  atrocious  outrages,  and  for  the  application 
of  remedial  measures  to  the  failure  on  the  part  of  the  Louisi- 
ana authorities  to  do  justice,  it  should  hardly  seem  necessary 
to  testify  to  your  excellency  the  unqualified  condemnation  with 
which  the  government  of  the  United  States  views  all  such  acts 
of  lawless  violence,  whether  committed  against  the  subjects  of 
other  States  residing  in  the  United  States  or  against  its  own 
citizens. 

"Your  excellency  is  advised  of  the  dual  nature  of  our  gov- 
ernment, and  of  the  defect  in  the  federal  laws,  which  the 
President  has  sought,  so  far  as  lies  in  his  power,  to  have 
remedied,  and  of  the  prompt  and  energetic  measures  adopted 
by  the  Department  of  State  with  a  view  to  the  punishment,  by 
the  only  competent  authorities,  of  the  authors  of  the  crime  un- 
der discussion. 

"It  having  been  shown  that  Italian  subjects  were  slain  by 
said  lynching,  and  that  there  has  been  a  failure  on  the  part  of 
the  only  competent  authorities  to  indict  or  bring  the  guilty 
parties  to  trial  in  any  form,  the  President  feels  that  a  case  has 
been  established  that  should  be  submitted  to  the  consideration 
of  Congress,  with  a  view  to  the  relief  of  the  families  of  Italian 
subjects  who  lost  their  lives  by  lawless  violence,  which  will 
accordingly  be  done  on  the  reassembling  of  Congress  in  De- 
cember next."  ®® 

88  Foreign  Relations  U.  S.  1900,  p.  72a 


§  47)  PROTECTION    OF    NATIONALS.  139 

Presidents  of  the  United  States  have  repeatedly  recom- 
mended that  legislation  be  passed  conferring  upon  the  federal 
courts  jurisdiction  in  cases  involving  the  treaty  rights  of  aliens. 

There  have  been  several  cases  of  violence  against  Italians 
for  which  the  national  government  has  paid  indemnity. ^°  The 
indemnity  for  the  lynching  in  New  Orleans  in  1890  amounted 
to  nearly  $25,000. 

By  an  act  of  Congress  of  March  3,  1901,  it  was  voted: 

"To  pay,  out  of  humane  consideration,  without  reference  to 
the  question  of  liability  therefor,  to  the  Italian  government  as 
full  indemnity  to  the  heirs  of  Joseph  Defatta  and  John  Cyrano, 
Italian  citizens  who  were  lynched  at  Tallulah,  Louisiana,  on 
July  twentieth,  eighteen  hundred  and  ninety-nine,  four  thou- 
sand dollars."  "" 

The  United  States  has  thus  in  fact  recognized  its  responsi- 
bility in  many  cases.  The  correspondence  with  foreign  states 
on  this  subject  covers  many  pages  of  the  United  States  For- 
eign Relations  since  1891,  and  receives  considerable  attention 
in  the  messages  of  the  Presidents. 

Over  its  nationals  outside  the  jurisdiction  of  any  state  the 
state  exercises  full  jurisdiction  and  protection  as  on  its  vessels 
on  the  high  sea.  A  large  degree  of  protection  is  also  often 
extended  to  nationals  in  dependent  areas,  even  when  these  are 
not  incorporated  into  the  state.®  ^  When  a  native  national  by 
residence  abroad  changes  his  domicile^^  to  the  foreign  state, 
he  cannot  as  of  right  claim  protection  from  his  native  state. 
The  rights  and  obligations  of  citizenship  are  naturally  correla- 
tive. Long  residence  abroad  and  identification  of  interests 
with  those  of  the  foreign  state  may  be  sufficient  evidence  of 
intent  to  acquire  a  foreign  domicile  to  warrant  the  withdrawal 
of  national  protection. 

89  Id.  1891,  pp.  665-713;    1895,  II,  pp.  938-954;    1896. 

0  0  31  Stat.  1010,  c.  831. 

91  Hall,  Foreign  Jurisdiction  of  the  Britisti  Crown,  c.  3. 

9  2  Domicile  by  the  Roman  law  was  "the  place  from  which  a  person 
going  was  on  a  journey  and  to  which  returning  he  was  at  his  jour- 
ney's end"— "unde  cum  profectus  est  perigrlnari  jam  videtur,  quo  si 
rediit  peregrinari  jam  destitit." 


140  JURISDICTION.  (Cll,  4 

Nationals  of  one  state,  domiciled  in  a  foreign  state  which 
is  at  war,  are  liable  to  the  consequences  of  the  war. 

(b)  Naturalized  nationals  are  entitled  to  the  same  degree  of 
protection  as  natives  elsewhere  than  in  states  of  their  prior  al- 
legiance. In  states  of  their  prior  allegiance  their  status  will 
be  dependent  upon  the  local  law.  If  obligations  to  the  state  of 
their  prior  allegiance  or  liabilities  rested  upon  a  naturalized 
national  before  his  naturalization,  it  is  generally  maintained 
that  such  obligation  or  liability  revives  on  his  return  to  the 
state  of  his  prior  allegiance.  Some  states  hold  that  only  those 
obligations  and  liabilities  incurred  before  emigration  revive.®' 

(c)  When  a  national  of  one  state  declares  his  intention  to 
become  a  citizen  of  another  state  and  to  renounce  his  allegiance 
to  his  former  sovereign,  he  acquires  an  inchoate  nationality  in 
the  state  of  his  choice.    This  declaration,  called  the  "declara- 

»3  "But  a  naturalized  American  of  German  birth  is  liable  to  trial 
and  punishment  upon  return  to  Germany  for  an  offense  against  Ger- 
man law  committed  before  emigration,  saving  always  the  limitations 
of  the  laws  of  Germany.  If  he  emigrated  after  he  was  enrolled  as 
a  recruit  in  the  standing  army;  if  he  emigrated  while  in  service,  or 
while  on  leave  of  absence  for  a  limited  time;  if,  having  an  unlim- 
ited leave,  or  being  in  the  reserve,  he  emigrated  after  receiving  a 
call  into  sei*vice,  or  after  a  public  proclamation  requiring  his  appear- 
ance, or  after  war  broke  out — he  is  liable  to  trial  and  punishment  on 
return."  Liability  to  military  service  in  Germany  extends  from  the 
completion  of  the  seventeenth  year  of  age  to  the  forty-fifth  year. 
Foreign  Relations  U.  S.  1901,  p.  161. 

See  same  volume  for  Austria-Hungary,  p.  7 ;  Belgium,  p.  16 ;  Den- 
mark, p.  139;  France,  153;  Germany,  160:  Greece,  247;  Italy,  282; 
Netherlands,  418;  Persia,  424;  Portugal,  439;  Roumania.  441; 
Russia,  453;  Servia,  455;  Sweden  and  Norway,  486;  Switzerland, 
499 ;   Turkey,  515. 

"The  Turkish  government  denies  the  right  of  a  Turk  to  become  a 
citizen  of  any  other  country  without  the  authority  of  the  Turkish 
government.  His  naturalization  is  therefore  regarded  by  Turkey  as 
void  with  reference  to  himself  and  his  children,  and  he  is  forbidden 
to  return  to  Turkey. 

"The  consent  of  the  Turkish  government  to  the  naturalization  in 
another  country  of  a  former  Turk  is  given  only  upon  condition  that 
the  applicant  shall  stipulate  either  never  to  return,  or,  returning,  to 
regard  himself  as  a  Turkish  subject.  Therefore,  if  a  naturalized 
American  citizen  of  Turkish  origin  returns  to  Turkey,  he  may  expect 
arrest  and  imprisonment  or  expulsion." 


§  47)  PROTECTION    OF    NATIONALS.  141 

tion  of  intention"  in  the  United  States,"*  does  not  confer  upon 
the  declarant  the  rights  of  citizenship,  and  until  naturalization 
is  completed  he  remains  an  alien.  It  is  customary  for  a  state 
to  extend  a  degree  of  protection  to  those  who  have  declared 
their  intention  to  acquire  its  nationality.  Such  protection  will 
ordinarily  only  be  afforded  to  the  declarant  when  outside  the 
jurisdiction  of  the  state  which  he  proposes  to  renounce."^ 

One  of  the  most  widely  discussed  cases  of  protection  arose 
in  1853.  Martin  Koszta,  a  Hungarian,  who  had  participated 
in  the  Revolution  of  1848-49,  fled  to  Turkey,  was  imprisoned, 

84  "Declaration  of  Intention. 
"(Invalid  for  all  purposes  seven  years  after  the  date  hereof.) 


"I, ,  aged years,  occupation ,  do  declare  on  oath 

(affirm)  that  my  personal  description  is:    Color   ,  complexion 

height   ,  weight   ,  color  of  hair  ,  color  of 

eyes ,  other  visible  distinctive  marks  ;    I  was  born  in 

on  the   day  of  ,  Anno  Domini   ;    I  now 

reside  at ;    I  emigrated  to  the  United  States  of  America  from 

on  the  vessel   ;    my  last  foreign  residence  was 

It  is  my  bona  fide  intention  to  renounce  forever  all  allegiance  and 
fidelity  to  any  foreign  prince,  potentate,  state,  or  sovereignty,  and 

particularly  to    ,  of  which   I   am  now  a  citizen   (subject);    I 

arrived  at  the  (port)  of ,  in  the  state  (territory  or  district)  of 

on  or  al>out  the day  of Anno  Domini;    I  am  not 

an  anarchist ;  I  am  not  a  polygamist,  nor  a  believer  in  the  practice 
of  polygamy;  and  it  is  my  intention  in  good  faith  to  become  a  citi- 
zen of  the  United  States  of  America  and  to  permanently  reside  there- 
in.   So  help  me  God. 

"(Original  signature  of  declarant)   

"Subscribed  and  sworn  to  (affirmed)  before  me  this day  of 

,  Anno  Domini 

"[L.  S.]  "(Official  character  of  attestor.)" 

9  5  Act  March  2,  Um  (U.  S.  Comp.  St.  1901,  p.  438)  provided:  "That 
the  Secretary  of  State  shall  be  authorized  in  his  discretion  to  issue 
passports  to  persons  not  citizens  of  the  United  States  as  follows: 
Where  any  person  has  made  a  declaration  of  intention  to  become  such 
a  citizen  as  provided  by  law,  and  has  resided  in  the  United  States 
for  three  years,  a  passport  may  be  issued  to  him  entitling  him  to  the 
protection  of  the  government  in  any  foreign  country:  Provided,  that 
such  passport  shall  not  be  valid  for  more  than  six  months  and  shall 
not  be  renewed,  and  that  such  passport  shall  not  entitle  the  holder  to 
the  protection  of  this  government  in  the  country  of  which  he  was  a 
citizen  prior  to  making  such  declaration  of  intention," 


142  JURISDICTION.  (Ch.  4 

and  released  on  condition  that  he  would  leave  that  state. 
Koszta  came  to  the  United  States,  declared  his  intention  to  be- 
come a  citizen  July  31,  1S52,  and  returned  to  Turkey  in  1853, 
as  he  alleged,  on  "private  business  of  a  temporary  character." 
The  American  representatives  in  Turkey  furnished  him  with 
"a  tezkereh — a  kind  of  passport  or  letter  of  safe-conduct." 
XMiile  in  Smyrna  he  was  thrown  into  the  sea.  He  was  picked 
up  by  a  crew  from  the  Austrian  warship  Huzzar,  taken  on 
board  the  ship,  and  confined  in  irons.  The  American  repre- 
sentatives requested  Koszta's  release,  which  was  not  granted. 
On  arrival  of  an  American  warship  in  the  harbor,  Koszta's  re- 
lease was  demanded,  with  an  intimation  that  force  would  be 
used.  Koszta  was  then  delivered  "into  the  custody  of  the 
French  consul  general,  to  be  kept  by  him  until  the  United  States 
and  Austria  should  agree  as  to  the  manner  of  disposing  of 
him."  Koszta  was  allowed  to  return  to  the  United  States, 
though  Austria  maintained  her  right  to  proceed  against  him  if 
he  should  again  return  to  Turkey.  After  mentioning  that 
Koszta  had  by  declaration  manifested  the  intention  of  making 
the  United  States  his  permanent  abode.  Secretary  Marcy  says : 
"The  establishment  of  his  domicile  here  invested  him  with  the 
national  character  of  this  country,  and  with  that  character  he 
acquired  the  right  to  claim  protection  from  the  United  States, 
and  they  had  the  right  to  extend  it  to  him  as  long  as  that  char- 
acter continued.  *  *  *  This  right  to  protect  persons  having 
a  domicile,  though  not  native-born  or  naturalized  citizens,  rests 
on  the  firm  foundation  of  justice,  and  the  claim  to  be  protected 
is  earned  by  considerations  which  the  protecting  power  is  not 
at  liberty  to  disregard."  ®^ 

9c  This  case  is  stated  quite  fully  In  3  Moore,  §§  490.  491.  The 
position  taken  by  Secretary  Marcy  has  been  regarded  as  carrying 
the  right  to  protection  farther  than  may  be  generally  expedient.  Sec- 
retary Olney.  in  a  letter  to  the  Minister  of  China,  Mr.  Denby,  in 
189G,  said:  "The  somewhat  extreme  position  taken  by  Mr.  Marcy  in 
the  Koszta  case,  that  the  declarant  is  followed,  during  sojourn  in  a 
third  countiy,  by  the  protection  of  this  government,  has  since  been 
necessarily  regarded  as  applying  particularly  to  the  peculiar  circum- 
stances in  which  it  originated,  and  to  relate  only  to  the  protection  of 
such  a  declarant  in  a  third  country  against  arbitrary  seizure  by  the 
government  of  the  country  of  his  origin."  Foreign  Relations  U.  S. 
1896,  p.  92. 

See,  also,  case  of  Burnato,  3  Moore,  p.  847. 


§  48)  ALIENS.  143 

The  United  States  by  law  of  1907  allows  the  Secretary  of 
State  in  his  discretion  to  issue  a  passport  to  a  person  not  a 
citizen  of  the  United  States,  provided  he  has  declared  his  in- 
tention to  become  such  and  has  resided  in  the  United  States 
for  three  years.  Such  passports  are  not  valid  for  more  than 
six  months,  nor  in  the  state  of  prior  allegiance,  and  cannot  be 
renewed.®^ 

ALIENS. 

48.    In  general,  a  state  lias  tlie  right  to  proliiliit  or  condition 
tlie  entrance  and  sojourn  of  aliens  \5ritliin  its  borders. 

(a)  The  right  to  exclude  aliens  was  one  generally  recognized 
and  observed  in  early  times.  Some  states  now  make  the  en- 
trance of  any  alien  difficult.  Other  states  exclude  certain 
classes.  The  United  States,  by  the  treaty  of  November  17, 
1880,  excludes  Chinese  laborers.®^     A  state  may  also  exclude 

9  7  34  Stat  1228  (U.  S.  Comp.  St.  Supp.  1909,  p.  438). 

9  8  22  Stat.  826. 

"Article  I.  Whenever  in  the  opinion  of  the  government  of  the 
United  States,  the  coming  of  Chinese  laborers,  to  the  United  States, 
or  their  residence  therein,  affects  or  threatens  to  affect  the  inter- 
ests of  that  country,  or  to  endanger  the  good  order  of  the  said 
country  or  of  any  locality  within  the  territory  thereof,  the  govern- 
ment of  China  agrees  that  the  government  of  the  United  States 
may  regulate,  limit,  or  suspend  such  coming  or  residence,  but  mar 
not  absolutely  prohibit  it.  The  limitation  or  suspension  shall  be 
reasonable  and  shall  apply  only  to  Chinese  who  may  go  to  the  United 
States  as  laborers,  other  classes  not  being  included  in  the  limitations. 
Legislation  taken  in  regard  to  Chinese  laborers  will  be  of  such  a 
character  only  as  is  necessary  to  enforce  the  regulations,  limitation, 
or  suspension  of  immigration,  and  immigrants  shall  not  be  subject 
to  personal  maltreatment  or  abuse. 

"Article  II.  Chinese  subjects,  whether  proceeding  to  the  United 
States  as  teachers,  students,  merchants,  or  from  curiosity,  together 
with  their  body  and  household  servants,  and  Chinese  laborers  who 
are  now  in  the  United  States  shall  be  allowed  to  go  and  come  of 
their  own  free  will  and  accord,  and  shall  be  accorded  all  the  rights, 
privileges,  immunities,  and  exceptions  which  are  accorded  to  the 
citizens  and  subjects  of  the  most  favored  nations." 

Treaty  between  the  United  States  and  China,  November  17,  1880. 

See,  also,  Chinese  Exclusion  Case,  130  U.  S.  581,  9  Sup.  Ct.  623,  32 
L.  Ed.  1068 ;  Foug  Yue  Ting  v.  United  States,  149  U.  S.  098,  13  Sup. 
Ct.  1016,  37  L.  Ed.  905. 


144  JURISDICTION.  (Ch.  4 

certain  classes  by  legislation.  The  United  States  has  passed 
laws  excluding  anarchists  and  polygamists  and  other  laws  re- 
stricting immigration."" 

(b)  States  generally  claim  the  right  to  expel  aliens  regarded 
as  endangering  the  safety  of  the  state.  There  have  been  many 
examples  of  such  expulsion.^ 

In  1901  Mr.  George  Kennan,  who  had  previously  published 
criticisms  upon  the  administration  of  the  Siberian  prisons,  was 
expelled  from  Russia  under  the  law  which  provides : 

"Foreigners  who  have  come  into  Russia  with  passports  may 
be  expelled  from  the  Empire  only  upon  the  deci.-ion  of  a  court 
of  law  or  by  order  of  the  higher  police  authorities, 

"Those  foreigners  whose  behavior  is  suspicious  and  those 
who  are  not  desirable  as  residents  within  the  Empire  may  be 
expelled  by  order  of  the  minister  of  the  interior." 

Of  this  expulsion  Mr.  Kennan  wrote  to  the  American  Am- 
bassador in  St.  Petersburg : 

"A  very  courteous  officer  from  the  department  of  police 
called  at  my  room  this  afternoon  to  inform  me  that  by  direc- 
tion of  the  minister  of  the  interior  and  in  accordance  with 
chapter  313  of  Volume  II  of  the  laws  of  the  Empire,  I,  as  an 
'untrustworthy'  American  citizen,  am  to  be  sent  out  of  the 
country  by  the  train  leaving  here  for  Germany  at  10 :30  to- 
morrow night.  Meanwhile  I  am  under  close  arrest  in  my 
room. 

"Of  course,  they  are  acting  within  their  right,  and  I  have  no 
complaint  whatever  to  make,  nor  do  I  ask  interposition  on  the 
part  of  the  embassy.  I  merely  wish  you  to  know  why  it  is 
impossible  for  me  to  make  a  farewell  call  upon  you."  ^ 

(c)  Aliens  may  be  admitted  conditionally,  with  the  under- 
standing that  they  are  to  have  only  certain  privileges ;  e.  g., 
the  privilege  of  study  or  travel,  but  not  the  right  to  engage  in 
business. 

(d)  The  state  usually  claims  full  authority  over  aliens  as 
regards  police,  sanitary,  and  penal  jurisdiction.  This  does  not 
extend  to  compulsory  military  service  for  political  ends,  though 

88  Act  Feb.  20,  1907  (U.  S,  Comp.  St.  Supp.  190'J,  p.  447). 

1  4  Moore,  §§  .jr,0-r..j9. 

2  Foreign  Relatious  U.  S.  1901,  pp.  451,  452, 


§  49)  EXTRADITION.  145 

an  alien  may  enter  the  military  service  as  a  volunteer,  or  may 
be  compelled  to  serve  the  state  in  the  maintenance  of  public 
order,  which  may  be  as  essential  to  him  as  to  citizens.  Such 
service  might  be  in  the  defense  against  savages  or  irresponsible 
bodies  of  men. 

(e)  Rights  of  property  and  inheritance  may  be  determined 
by  local  laws,  and  are  not  always  the  same  for  alien  and 
national. 

(f)  A  state  may  require  a  passport  or  other  documentary 
evidence  of  identity.  In  some  instances  the  documents  of 
identification  must  contain  the  photograph  of  the  alien,  as  well 
as  the  ordinary  description  of  his  physical  characteristics. 

EXTRADITION. 

49.  Extradition  is  the  surrender  hj  one  state  to  another  state 
for  trial  and  punishment  of  a  person  accused  of  crime 
committed  outside  the  jurisdiction  of  the  state  making 
the  surrender. 

Not  only  may  a  state  expel  an  offender  against  its  own  well- 
being,  but  it  may  surrender  a  person  accused  of  crime  com- 
mitted outside  of  its  jurisdiction.  This  principle  of  extradi- 
tion has  long  been  recognized,  though  it  cannot  be  claimed 
that  there  is  a  universally  accepted  right  to  dem.and  a  criminal 
who  has  sought  refuge  in  a  foreign  state.  Grotius  in  1625 
said:  "Since,  however,  it  is  not  customary  for  states  to  permit 
another  state  to 'enter  its  territory  under  arms  for  the  sake  of 
administering  punishment,  nor  is  it  expedient,  it  follows  that 
the  state  where  the  one  who  has  committed  the  offense  sojourns 
ought  to  do  one  of  two  things :  Either  on  demand  it  should 
punish  the  guilty  party,  or  it  should  turn  him  over  for  trial  to 
the  state  making  the  demand."  ^  Treaties  of  extradition  are 
particularly  the  product  of  the  nineteenth  century,  though  the 
practice  of  surrendering  certain  fugitives  from  justice  was 
common  among  states  in  earlier  days.  There  are  now  so  many 
treaties  of  extradition  that  a  criminal  can  rarely  escape  justice 
by  flight  to  another  state. 

8  De  Jure  Belli  ac  Pacis.  lib.  II,  c.  XXI,  §  IV,  1. 

WiLS.lNT.L.— 10 


140  JuitisDUTioN.  (Ch.  4 

(a)  Extradition  is  an  act  of  the  state.  While  surrender  is 
sometimes  granted  as  an  act  of  courtesy,  extradition  is  usually 
based  on  treaty  agreement.  Air.  Justice  IMillcr  in  1886  said: 
"It  is  only  in  modern  times  that  the  nations  of  the  earth  have 
imposed  upon  themselves  the  obligation  of  delivering  up  these 
fugitives  from  justice  to  the  states  where  their  crimes  were 
committed  for  trial  and  punishment.  This  has  been  done  gen- 
erally by  treaties  made  by  one  independent  government  with 
another.  Prior  to  these  treaties,  and  apart  from  them,  it  may 
be  stated,  as  the  general  result  of  the  writers  upon  interna- 
tional law,  that  there  was  no  well-defined  obligation  on  one 
country-  to  deliver  up  such  fugitives  to  another,  and,  though 
such  delivery  was  often  made,  it  was  upon  the  principle  of 
comity,  and  within  the  discretion  of  the  government  whose 
action  was  invoked ;  and  it  has  never  been  recognized  as 
among  those  obligations  of  one  government  towards  another 
which  rest  upon  established  principles  of  international  law."  * 

(b)  The  crimes  for  which  extradition  is  granted  vary  in  the 
different  treaties.  In  general,  all  crimes,  except  offenses 
against  religious  laws  and  such  as  are  purely  political,  are  re- 
garded as  extraditable.  Political  crimes,  accompanied  by  acts 
of  violence  against  the  person  or  family  of  the  sovereign,  are 
usually  made  liable  to  extradition.'  Desertion  from  the  mili- 
tary service  is  often  excluded  from  the  list  of  extraditable 
offenses. 

(c)  Nationals  of  a  state,  who  have  taken  refuge  in  a  foreign 
state  and  are  accused  of  an  extraditable  crime  committed  with- 
in their  own  state,  are  usually  extradited  on  demand.  Extradi- 
tion of  the  nationals  of  a  state  who  are  within  its  jurisdiction 
is  at  present  at  the  discretion  of  the  state,  though  they  are 
usually  given  up  on  demand.*' 

Extradition  may  be  delayed  if  the  person  requisitioned  is 
charged  with  or  under  sentence  for  crime  committed  in  the 
state  within  whose  jurisdiction  he  is. 

4  United  States  v.  Rauscher,  119  U.  S.  407,  7  Sup.  Ct.  234.  30  L. 
Ed.  425. 

&1  Moore,  Extradition,  p.  308;  Treaty  between  the  United  States 
and  Russia  1887,  art.  III. 

6  1  Moore,  Extradition,  p.  152. 


§  50)  EXEMPTIONS    FROM   JURISDICTION.  147 

When  a  fugitive  from  justice  is  claimed  by  two  or  more 
powers,  later  practice  and  treaties  generally  give  preference  to 
prior  demand.  Sometimes  the  gravity  of  the  crime  is  con- 
sidered. 

(d)  A  person  who  has  been  surrendered  to  a  state  on  ac- 
count of  an  offense  mentioned  in  an  extradition  treaty,  and 
has  satisfied  the  state  as  to  that  offense,  is  usually  allowed  a 
reasonable  time  in  which  to  leave  the  state  before  prosecution 
for  any  crime  committed  previous  to  extradition. 

(e)  Procedure  in  extradition  is  well  established.  Extradi- 
tion proceedings  are  usually  through  officials  of  national  gov- 
ernments, though  local  officials  are  sometimes  authorized  to 
receive  applications  for  requisitions.^  Requisitions  must  show 
evidence  of  an  offense  enumerated  in  the  treaty  between  the 
states  concerned  and  of  the  identity  of  the  person  demanded. 
Provisional  arrest  and  detention  is  often  permitted  pending  the 
presentation  of  the  formal  proofs  upon  which  a  demand  for 
extradition  is  based. ^ 

EXEMPTIONS   FROM  JURISDICTION. 

50.  Immunity  from  local  jurisdiction  is  generally  granted  to 
certain  officials  of  a  foreign  state  and  tlie  persons  or 
things  under  tlieir  control. 

"The  world  being  composed  of  distinct  sovereignties,  pos- 
sessing equal  rights  and  equal  independence,  whose  mutual 
benefit  is  promoted  by  intercourse  with  each  other,  and  by  an 
interchange  of  those  good  offices  which  humanity  dictates  and 
its  wants  require,  all  sovereigns  have  consented  to  a  relaxation 
in  practice,  in  cases  under  certain  peculiar  circumstances,  of 
that  absolute  and  complete  jurisdiction  within  their  respective 
territories  which  sovereignty  confers.     *     '■'     * 

"This  perfect  equality  and  absolute  independence  of  sover- 
eigns, and  this  common  interest  impelling  them  to  mutual  in- 

"  In  case  of  the  frontier  states  and  territories  of  the  United  States 
and  of  Mexico,  requisitions  may  under  certain  circumstances  be  made 
by  local  officials.  Treaty  of  the  United  States  and  Mexico,  Feb. 
22,  1899,  art.  IX,  31  Stat.  1818. 

8  For  United  States  practice  in  general,  see  4  Moore,  §§  579-622. 


148  JURISDICTION.  (Cll.  4 

tercourse  and  an  interchange  of  g'ood  offices  with  each  other, 
have  given  rise  to  a  class  of  cases  in  which  every  sovereign 
is  understood  to  waive  the  exercise  of  a  part  of  that  complete 
exclusive  territorial  jurisdiction,  which  has  been  stated  to  be 
the  attribute  of  every  nation. 

"First.  One  of  these  is  admitted  to  be  the  exemption  of  the 
person  of  the  sovereign  from  arrest  or  detention  within  a  for- 
eign territory.    *     *    * 

"Second.  A  second  case,  standing  on  the  same  principles 
with  the  first,  is  the  immunity  which  all  civilized  nations  allow 
to  foreign  ministers.     *     *     * 

"Third.  A  third  case  in  which  a  sovereign  is  understood  to 
cede  a  portion  of  his  territorial  jurisdiction  is  where  he  allows 
the  troops  of  a  foreign  prince  to  pass  through  his  dominions."  ® 

(a)  The  sovereign  is  exempt  from  both  civil  and  criminal 
jurisdiction.^"  His  retinue  and  hotel  or  place  of  residence 
are  exempt  from  local  jurisdiction.  He  may  not  make  his 
hotel  an  asylum  for  those  not  of  his  retinue.  A  foreign  sov- 
ereign may  be  invited  to  leave,  or  even  be  expelled  by  force,  if 
his  acts  unduly  endanger  the  peace  of  the  state  of  his  sojourn. 

A  sovereign  may  lay  aside  his  official  capacity  and  engage  in 
business  or  travel  incognito.  He  is  then  entitled  to  the  privi- 
leges accorded  to  the  position  he  has  assumed,  but  can  at  any 
time  resume  his  sovereign  personality  and  the  immunities  ap- 
pertaining thereto. 

(b)  A  diplomatic  agent,  as  a  representative  of  the  sover- 
eignty of  the  state  which  sends  him,  is  accorded  immunities 
similar  to  those  accorded  to  the  sovereign.  ^^ 

(c)  A  consul,  representing  the  commercial  and  business  af- 
fairs of  his  state,  is  usually  accorded  the  exemption  needful  for 
the  performance  of  his  functions. ^- 

(d)  It  is  held  that  the  grant  of  free  passage  through  a  state 
for  a  foreign  army  "implies  a  waiver  of  all  jurisdiction  over 

9  Schooner  Exchange  v.  McFaddon  (1812)  7  Cranch,  116,  3  L.  Ed.  287. 

10  In  the  ease  of  Vavasseur  v.  Krupp,  [1878]  L.  R.  9  Ch.  Div.  351, 
it  was  decided  that  the  Mikado  of  Japan  was  not  liable  under  the 
English  patent  law.  In  the  case  of  Migbell  v.  Sultan  of  Johore,  1 
Q.  B.  [1894]  149,  it  was  decided  that  the  sovereign  was  exempt  from 
suit  for  breach  of  promise  of  marriage. 

11  See  section  61.  12  See  section  68. 


§  50)  EXEMPTIONS    FROM    JURISDICTION.  149 

the  troops  during-  their  passage,  and  permits  the  foreign  gen- 
eral to  use  that  discipHne,  and  to  inflict  those  punishments, 
which  the  government  of  his  army  may  require."  ^^ 

(e)  Naval  forces,  entering  or  remaining  within  the  maritime 
jurisdiction  of  a  foreign  state  in  time  of  peace,  are  usually  ex- 
empt from  local  laws  and  regulations,  except  such  as  are  nec- 
essary for  the  peace  and  well-being  of  the  port.^*  Naval  ves- 
sels, and  the  boats,  tenders,  etc.,  belonging  thereto,  with  their 
officers  and  crews,  are  exempt  from  local  jurisdiction.  This 
exemption  does  not  necessarily  extend  to  any  of  the  officers 
or  crew  of  the  vessel  who  may  violate  the  local  law  when  on 
shore,  though  it  is  customary  for  local  authorities  to  send  to 
the  commander  members  of  his  crew  who  have  been  guilty  only 
of  minor  offenses  on  shore.  The  right  of  asylum  on  public 
vessels,  formerly  maintained,  is  now  generally  disclaimed,  ex- 
cept in  uncivilized  regions,  or  in  time  of  revolution,  or  under 
exceptional  circumstances.^^ 

The  abuse  of  exemptions  may  lead  to  a  request  that  the  ves- 
sel be  withdrawn,  or  in  an  extreme  case  to  the  use  of  force. 
The  request  would  ordinarily  be  through  the  diplomatic  agent 
of  the  state  of  the  flag  of  the  vessel.  In  recent  years  there 
has  been  a  tendency  to  claim  that  a  state  which  receives  a  for- 
eign naval  vessel  within  jurisdiction  is  under  obligation  to 
afford  it  a  reasonable  degree  of  protection.  In  a  communica- 
tion to  the  United  States  minister  to  Spain  in  regard  to  the 
destruction  of  the  U.  S.  S.  Maine  in  Habana  harbor,  the  Sec- 
retary of  State  said  of  the  responsibility  of  the  Spanish  govern- 

13  Exchange  v.  McFaddon.  7  Craiich,  116,  3  L.  Ed.  287. 

14  By  Belgian  Royal  Decree  of  February  18,  1901,  art.  VII,  "cap- 
tains of  foreign  men  of  war  are  required  to  observe  the  laws  and  reg- 
ulations concerning  the  police,  public  health,  taxes,  and  imposts, 
unless  exception  be  made  by  particular  convention  or  by  interna- 
tional usage." 

15  The  U.  S.  Navy  Regulations  state:  "308.  The  right  of  asylum 
for  political  or  other  refugees  has  no  foundation  in  international 
law.  In  countries,  however,  where  frequent  insurrections  occur,  and 
constant  instability  of  government  exists,  usage  sanctions  the  grant- 
ing of  asylum ;  but  even  in  the  waters  of  such  countries,  officers 
should  refuse  all  applications  for  asylum  except  when  required  by 
the  interests  of  humanity  in  extreme  or  exceptional  cases,  such  as 
the  pursuit  of  a  refugee  by  a  mob.  Officers  must  not  directly  nor 
indirectly  invite  refugees  to  accept  asylum." 


150  JURISDICTION.  (Ch.  4 

ment:  "The  l\Iaine,  on  a  peaceful  errand,  and  with  the  knowl- 
edge and  consent  of  that  government,  entered  the  harbor  of 
Habana.  relying  upon  the  security  and  protection  of  a  friendly 
port.  Confessedly  she  still  remained,  as  to  what  took  place  on 
board,  under  the  jurisdiction  of  her  own  government,  yet  the 
control  of  the  harbor  remained  in  the  Spanish  government, 
which,  as  the  sovereign  of  the  place,  was  bound  to  render  pro- 
tection to  persons  and  property  there,  and  especially  to  the 
public  ship  and  the  sailors  of  a'  friendly  power."  ^^ 

Sailors  from  the  U.  S.  S.  Baltimore  were  attacked  while  on 
shore  leave  in  Valparaiso  on  October  IG,  1891.  Several  were 
wounded  and  one  killed.  Chili  was  at  the  time  in  a  disturbed 
condition  because  of  revolutionary  movements.  Chili  paid  an 
indemnity  of  $75,000  to  the  injured  seamen  and  to  the  families 
of  those  who  had  lost  their  lives. ^^ 

(f)  Other  public  vessels,  such  as  those  engaged  in  hospital, 
scientific,  transport,  mail,  telegraph,  collier,  or  other  service 
for  the  government  of  a  state,  and  under  state  control,  have 
been  granted  exemptions. 

Public  vessels  engaged  in  philanthropic  or  scientific  work 
and  vessels  engaged  in  exploration  are  usually  accorded  large 
immunity  from  local  jurisdiction. 

The  court  decided  the  troop  ship  Athol  was  beyond  its  juris- 
diction when  claims  against  it  for  damages  on  account  of  col- 
lision were  brought  in  1842.^^ 

In  the  case  of  The  Parlement  Beige  in  1880  the  court  de- 
cided "that  an  unarmed  packet  belonging  to  the  sovereign  of  a 
foreign  state,  and  in  the  hands  of  officers  commissioned  by 
him,  and  employed  in  carrying  mails,  is  not  liable  to  be  seized 
in  a  suit  in  rem  to  recover  redress  for  a  collision,  and  this  im- 
munity is  not  lost  by  reason  of  the  packet's  also  carrying  mer- 
chandise and  passengers  for  hire."  ^® 

Colliers  and  other  vessels  have  been  declared  exempt  from 
local  jurisdiction.'" 

16  Foreign  Relations  U.   S.   1S98,  p.   1037. 

17  Foreign  Relations  U.  S.  1891,  p.  194  ff.;    Id.  1892,  p.  54  Cf. 

18  1  W.  Rob.  Adm.  374. 

19  5  L.  R.  Prob.  Div.  197. 

20  Symons  v.  Baker,  K.  B.  Div.  Aug.  4,  1905 ;  Foreign  Relations  U. 
S.  1885,  pp.  343,  925 ;    The  Constitution,  [1879]  48  L.  J.  Prob.  Div.  13. 


§  51)  EXTRATKRUITORIAL   JURISDICTION.  151 


EXTRATERRITORIAI,    JURISDICTION. 

51.  In  certain  states,  chiefly  those  possessing  Oriental  civiliza- 
tion, the  nationals  of  Western  states  are  by  custom  or 
by  treaty  in  a  large  degree  subject  to  the  jurisdiction 
of  their  home  state,  or  subject  to  some  court  not  de- 
pendent on  the  state  in  w^hich  it  acts. 

From  the  early  part  of  the  seventeenth  century,  when  per- 
manent diplomatic  agents  began  to  be  sent  by  states  of  West- 
ern civilization  among  themselves,  the  jurisdiction  of  consuls 
over  their  nationals  declined.  In  the  Mohammedan  states  con- 
suls had  already  large  jurisdiction.  This  was  extended  by 
capitulations,  from  the  capitulation  of  Turkey  and  Great  Bri- 
tain in  1675,  until  in  many  cases  this  jurisdiction  became  al- 
most exclusive  as  to  nationals  of  the  consul's  own  state.- ^ 

Similar  jurisdiction  was  by  treaty  extended  to  other  non- 
European  states.  China  by  treaties  of  1841  and  1858  gave 
large  powers  of  jurisdiction  to  the  consuls  of  the  United 
States.- 2  The  clauses  relating  to  the  United  States  consular 
jurisdiction,  incorporated  in  certain  other  treaties,  are  of  simi- 

21  A  treaty  between  the  Ottoman  Empire  and  the  United  States  in 
1830  provides  that  citizens  of  the  United  States  charged  with  crime 
"shall  l>e  tried  by  their  minister  or  consul,  and  pimished  according  to 
their  offense,  following  in  this  respect  the  usage  observed  towards 
other  Franks."     Article  IV. 

22  Treaty  between  the  United  States  and  China  1858: 

"Article  XI.  *  *  *  Subjects  of  China  guilty  of  any  criminal 
act  towards  citizens  of  the  United  States  shall  be  punished  by  the 
Chinese  authorities  according  to  the  laws  of  China.  And  citizens  of 
the  United  States,  either  on  shore  or  in  any  merchant  vessel,  who 
may  insult,  trouble  or  wound  the  persons  or  injure  the  property  of 
Chinese  or  commit  any  other  improper  act  in  China,  shall  be  pun- 
ished only  by  the  consul  or  other  public  functionary  thereto  author- 
ized according  to  the  laws  of  the  United  States.  Arrests  in  order  to 
trial  may  be  made  by  either  the  Chinese  or  the  United  States  au- 
thorities." 

"Article  XXVII.  All  questions  in  regard  to  rights  whether  of  prop- 
erty or  person,  arising  between  citizens  of  the  United  States  in 
China  shall  be  subject  to  the  jurisdiction  and  regulated  by  the  author- 
ities of  their  own  government.  And  all  controversies  occurring  in 
China  between  citizens  of  the  United  States  and  the  subjects  of 
any   other  government   shall   be   regulated  by  the   treaties  existing 


152  JURISDICTION.  (Ch.  4 

lar  effect,  as  in  the  treaty  with  Morocco,  1787;  Tunis,  1797; 
Tripoli,  1S05;    Persia,  1856;    Siam,  1856. 

By  the  treaty  of  1891  between  the  United  States  and  Japan 
the  jurisdiction  granted  to  United  States  consuls  by  the  treaty 
of  1858  was  to  come  to  an  end  July  17,  1899,  and  citizens  of 
either  state  in  the  other  were  to  have  before  the  courts  the 
rights  of  natives. 

The  regulations  and  laws  for  consular  courts  are  prescribed 
by  the  state  accrediting  the  consul. ^^ 

In  1906  Congress  estabHshed  "the  United  States  Court  for 
China"  which  has  "exclusive  jurisdiction  in  all  cases  and  judi- 
cial proceedings  whereof  jurisdiction  may  now  be  exercised  by 
United  States  consuls  and  ministers  by  law  and  by  virtue  of 
treaties  between  the  United  States  and  China,"  where  in  civil 
cases  the  sum  involved  exceeds  five  hundred  dollars  and  in 
criminal  cases  exceeds  a  fine  of  one  hundred  dollars  or  sixty 
days'  imprisonment,  or  both.  "The  United  States  Court  for 
China"  has  appellate  jurisdiction  in  other  cases  which  remain 
in  the  jurisdiction  of  the  ordinary  consular  courts.  Appeal 
may  be  taken  from  the  "United  States  Court  for  China 
*  *  *  to  the  United  States  Circuit  Court  of  Appeals  of  the 
Ninth  Judicial  Circuit,"  and  thence  to  the  Supreme  Court  of 
the  United  States.^* 

In  Egypt  there  are  specially  constituted  mixed  courts,  estab- 
lished by  a  convention  of  1875,  and  exercising  their  functions 
since  1876.^®  These  courts  are  mainly  concerned  with  civil 
cases  involving  nationals  of  different  states.  There  are  three 
courts  of  first  instance,  having  four  foreign  and  three  native 
judges,  and  one  court  of  appeal,  with  seven  foreign  and  four 
native  judges. 

between  the  United  States  and  such  governments  respectively  with- 
out interference  on  the  part  of  China. 

"Article  XXVIII.  *  *  *  And  if  controversies  arise  between 
citizens  of  the  United  States  and  subjects  of  China,  which  cannot  be 
amicably  settled  otherwise,  the  same  shall  be  examined  and  decided 
conformably  to  justice  and  equity  by  the  public  officers  of  the  two 
nations  acting  in  conjunction." 

23  For  Great  Britain,  see  Foreign  Jurisdiction  Act  1890  (St.  53 
&  54  Vict  c.  37);  Piggott,  Exterritoriality,  p.  47. 

2  4  Act  .June  :i().  1906  (U.  S.  Comp.  St.  Supp.  1909,  p.  1045). 

2-  19  Stat.  G(j2. 


§  62}  SERVITUDES.  153 


SERVITUDES. 

52.  Restrictions  on  the  free  exercise  of  the  jurisdiction  of  a 
state  in  the  -way  of  obligation  to  allow  a  foreign  state 
to  do  a  thing,  or  in  the  w^ay  of  obligation  to  a  foreign 
state  not  to  do  a  thing,  are  considered  as  servitudes.'- « 

.  Servitudes  are  usually  classified  as  positive,  consisting  in  the 
obligation  to  allow  a  foreign  state  to  do  a  thing,  or  negative, 
consisting  in  the  obligation  of  the  state  not  to  do  a  thing. 

Servitudes  may  exist  by  prescription,  or  may  be  created  by 
treaty.  The  right  of  the  dominant  state,  which  has  the  benefit 
of  the  servitude,  as  against  the  servient  state,  which  suffers  the 
servitude,  must  always  be  strictly  construed. 

Among  servitudes  are  obligations  of  a  state  to  allow  the  ex- 
ercise of  foreign  jurisdiction  within  its  territory.  The  admis- 
sion of  foreign  troops,  the  cession  of  military  and  coaling  sta- 
tions, or  the  grant  to  foreign  states  of  judicial  and  police  func- 
tions, within  a  state,  may  give  rise  to  servitudes.  Many  of 
these  cessions,  made  in  recent  years,  distinctly  state  that,  while 
jurisdiction  over  the  area  is  temporarily  relinquished,  sover- 
eignty is  retained.^''  Fishing  rights  in  foreign  territorial  wa- 
ters, the  right  to  use  foreign  coasts  or  ports  for  special  pur- 
se S6rvitutum  non  ea  natura  est,  ut  aliquid  faciat  quis,  sed  ut  all- 
quid  patiatur  aut  non  faciat.  Digest,  VIII,  1,  15;  Fabres,  Des  Serv- 
itudes dans  le  Droit  Internatioual.     (1901). 

27  For  Chinese  leases,  see  Foreign  Relations  U.  S.  1900,  pp.  384,  .388. 
In  the  agreement  between  the  United  States  and  Cuba,  February 
16-23,  190S,  the  Republic  of  Cuba  leased  certain  areas  to  the  United 
States  for  coaling  and  naval  stations  under  the  following  conditions: 
"Article  III.  While  on  the  one  hand  the  United  States  recognizes 
the  continuance  of  the  ultimate  sovereignty  of  the  Republic  of  Cnba. 
over  the  above-described  areas  of  laud  and  water,  on  the  other  hand 
the  Republic  of  Cuba  consents  that  during  the  period  of  the  occupa- 
tion by  the  United  States  of  said  areas  under  the  terms  of  this  agree- 
ment the  United  States  shall  exercise  complete  jurisdiction  and  con- 
trol over  and  within  said  areas,  with  the  right  to  acquire  (under  con- 
ditions to  be  hereafter  agreed  upon  by  the  two  governments)  for  the 
public  purposes  of  the  United  States  any  land  or  other  property  there- 
in by  purchase  or  by  exercise  of  eminent  domain,  with  full  compen- 
sation to  the  owners  thereof." 


154  JUKiSDicTiox.  (Ch.  4 

poses,  as  for  landing  cables,  etc.,  may  be  in  the  nature  of  servi- 
tudes.-^ 

Many  treaties  and  other  agreements  have  contained  provi- 
sions by  which  a  state  is  prevented  from  doing  a  thing  which 
in  absence  of  the  agreement  would  be  within  its  competence. 
Such  agreements  may  place  a  limitation  upon  armament,  limit 
the  location  of  fortifications,  limit  jurisdiction  over  certain  per- 
sons or  places,  or  put  a  state  under  other  disability.-'' 

2  8  1  Moore,  §  103  ff. 

29  In  some  cases  the  restriction  may  be  mutually  undertaken  as  in 
article  IX  of  the  Russo-Japanese  Treaty  of  September  5,  1905  (Treaty 
of  Portsmouth).  "Japan  and  Russia  mutually  agree  not  to  construct 
Avithin  their  respective  possessions  on  the  island  of  Saghalin.  and  the 
islands  adjacent  thereto,  any  fortification  or  similar  military  worl^. 
They  likewise  mutually  agree  not  to  adopt  any  military  measures 
which  might  hinder  the  free  navigation  of  the  Straits  of  La  Perouse 
and  Tartary." 


Part  hi 
intercourse  of  states 


WiLs.lNX.L.  (155)< 


§  53)  DIPLOMATIC   RELATIONS.  157 

CHAPTER  V. 
DIPLOMATIC  RELATIONS. 

53.  The  Head  of  the  State  in  International  Relations. 

54.  Department  of  Foreign  Affairs. 

55.  Diplomatic  Agents. 

56.  Appointment. 

57.  The  Right  of  Legation. 

58.  Suite  of  Diplomat. 

59.  Credentials,  etc.,  of  Diplomat. 

60.  Commencement  of  Mission. 

61.  Privileges  and  Prerogatives  of  Diplomat 

62.  Diplomatic  Functions. 

63.  Termination  of  Diplomatic  Mission. 


THE   HEAD    OF   THE    STATE   IN   INTERNATIONAI, 
RELATIONS. 

53.  The  head  of  the  state,  as  representing  its  sovereignty, 
acts  for  his  state  so  far  as  he  is  legally  competent, 
and  is  entitled  to  the  status  of  a  sovereign. 

It  is  necessary  that  in  international  relations  some  person 
represent  the  authority  of  the  state.  The  head  of  the  state, 
whether  called  emperor,  king,  president,  or  by  other  title,  and 
whatever  the  limitation  of  his  authority  by  local  law,  may  act 
within  his  legal  competence  in  international  affairs  on  behalf 
of  the  state.  The  power  possessed  by  heads  of  states  varies 
according  to  the  internal  constitution  of  the  state.  The  power 
of  the  head  of  a  state  may  be  almost  absolute,  or  may  be  nar- 
rowly prescribed.  The  head  of  the  state  accredits  and  receives 
international  agents  of  the  higher  grades,  and  authorizes  them 
to  act  in  behalf  of  the  state. 

The  head  of  the  state,  whatever  his  title,  is  entitled  to  the 
honors  and  privileges  due  to  a  representative  of  the  sovereignty 
of  a  state.  He  can  claim  the  recognition  of  his  title  and  form 
of  address.  When  in  a  foreign  state,  the  head  of  a  state  (a) 
is  inviolable  as  to  his  person,  and  he  must  be  given  the  widest 
possible  freedom  in  his  action;    (b)  is  exempt  from  local  law, 


158  DIPLOMATIC    IIELATIONS.  (Cll.  5 

and  is  given  the  fullest  degree  of  so-called  exterritoriality ;  (c) 
is  entitled  to  the  conventional  honors,  such  as  salutes,  etc.  There 
is  a  difference  of  opinion  as  to  extent  of  the  prerogatives  to 
which  the  head  of  a  republic  is  entitled.  Some  maintain  that 
these  are  not  equal  to  those  of  a  monarch;  ^  others  would  dif- 
ferentiate according  as  the  head  of  the  republic  is  sojourning 
in  his  official  capacity  or  in  his  private  capacity.-  Later  opin- 
ion inclines  to  like  recognition  of  the  heads  of  the  states,  re- 
gardless of  titular  designation.  A  head  of  a  state,  who  is  in  a 
foreign  state  incognito,  is  entitled  to  the  immunities  and  priv- 
ileges due  to  the  rank  which  he  has  assumed,  though  he  may 
at  any  time  assert  his  sovereign  rank. 

The  exemption  from  jurisdiction  in  a  foreign  state  does  not 
imply  that  the  visiting  sovereign  thereby  acquires  the  right  to 
exercise  his  own  jurisdiction  while  in  the  foreign  state.  Cour- 
tesy usually  allows  him  a  measure  of  control  over  those  at- 
tached to  his  person,  and  offenders  among  these  may  be  sent  to 
the  sovereign's  own  state  for  trial. 

At  the  present  time  negotiations  among  states  are  ordinarily 
carried  on  through  the  Department  of  Foreign  Affairs,  often 
under  direction  of  the  head  of  the  state. 


DEPARTMENT    OF   FOREIGN   AFFAIRS. 

54.  The  conduct  of  ordinary  international  negotiations  xp^ith- 
in  and  on  behalf  of  the  state  is  intrusted  to  officials 
designated  by  the  state  for  such  functions,  usually 
called  a   "department   of   foreign    affairs." 

The  office  intrusted  with  the  conduct  of  international  nego- 
tiations, usually  called  the  "Department  of  Foreign  Affairs," 
since  1789  in  the  United  States  has  been  called  the  "Depart- 
ment of  State,"  and  has  functions  in  addition  to  those  involved 
in  the  conduct  of  foreign  relations.^ 


1 1  Rivier,  §  91.  2  1  Martens,  §  80. 

3  Previous  to  1781  foreign  affairs  had  been  in  ctiarge  of  committees, 
etc.  In  1781  a  Secretary  for  Foreign  Affairs  was  appointed;  but  tbe 
conduct  of  international  relations  was  subject  to  many  changes.  Act 
July  27,   1789,  provided  for  the  establishment  of  a  "Department  of 


§  55)  DIPLOMATIC    AGENTS.  loO 

The  chief  officer  of  such  departments  usually  bears  the  title 
of  "Minister"  or  "Secretary."  He  signs  important  documents 
issued  by  the  head  of  the  state,  and  in  some  of  the  less  impor- 
tant matters  acts  for  the  state,  as  in  accrediting  charges  d'af- 
faires. The  functions  of  officers  of  the  department  dealing 
with  foreign  affairs  are  matters  of  state  rather  than  of  inter- 
national law. 

DIPLOMATIC    AGENTS. 

55.    Diplomatic  agents  are  commonly  of  four  grades: 

(a)  Ambassadors,  legates,  and  nuncios. 

(b)  Envoys,  ministers,   and  otber  persons  accredited  to  sov- 

ereigns. 

(c)  Ministers  resident. 

(d)  Charges  d'affaires. 

Agents    of   grades   varying   according    to    the    service    are 
appointed  upon  temporary  or  special  mission. 

The  third  grade,  that  of  minister  resident,  was  introduced 
by  the  Congress  of  Aix-la-Chapelle,  November  21,  1818.  The 
other  grades  had  been  prescribed  at  the  Congress  of  Vienna, 
March  9,  1815." 

Foreign  Affairs"  (1  Stat.  28);  but  later  in  the  same  year  the  depart- 
ment was  made  custodian  of  the  "acts,  records,  and  seal  of  the  United 
States,"  and  intrusted  with  certain  functions  usually  belonging  to  a 
department  of  the  interior,  and  named  the  "Department  of  State" 
(1  Stat.  68).  As  other  departments  have  been  created  in  the  United 
States,  the  functions  of  the  Department  of  State  have  now  become 
largely  those  of  a  department  of  foreign  affairs.  Hunt,  "Department 
of  State" ;    Michael,  "Department  of  State." 

The  Bureaus  of  the  United  States  Department  of  State  are:  Diplo- 
matic; Consular;  Indexes  and  Archives;  Accounts;  Rolls  and 
Library;  Trade  Relations;  Appointments;  Citizenship;  Near  East; 
and  Far  East.  There  are  also  three  Divisions:  Western  European 
Affairs  ;   Latin-American  Affairs  ;    Information. 

4  In  the  protocol  of  March  9,  1815,  at  the  Congress  of  Vienna,  an 
agreement  was  entered  upon  by  Austria,  Spain,  FTance,  Great  Britain, 
Portugal,  Prussia,  Russia,  and  Sweden  as  follows: 

"In  order  to  prevent  in  future  the  inconveniences  which  have  fre- 
quently occurred,  and  which  may  still  occur,  from  the  claims  of 
precedence  among  the  diffei-ent  diplomatic  characters,  the  plenipoten- 
tiaries of  the  powers  who  signed  the  Treaty  of  Paris  have  agreed 


160  DIPLOMATIC   RELATIONS.  (Ch.  5 

From  the  thirteenth  century,  under  the  influence  of  the 
ItaHan  city  states,  a  system  of  foreign  representation  devel- 
oped.^   In  the  fifteenth  century  the  sending  of  permanent  mis- 

on  the  following  articles,  and  think  it  their  duty  to  invite  those  of 
other  crowned  heads  to  adopt  the  same  regulations: 

"Art.  I.  Diplomatic  characters  are  divided  into  three  classes:  That 
of  Ambassadors,  Legatees,  or  Nuncios. 

"That  of  Envoys,  Ministers,  or  other  persons,  accredited  to  Sov- 
ereigns. 

"That  of  Charges  d' Affaires  accredited  to  Ministers  for  Foreign 
Affairs. 

"Art.  II.  Ambassadors,  Legatees,  or  Nuncios  only  shall  have  the 
representative  character. 

"Art.  III.  Diplomatic  characters  charged  with  any  special  mission 
shall  not,  on  that  account,  assume  any  superiority  of  rank. 

'•Art.  IV.  Diplomatic  characters  shall  rank  in  their  respective 
classes  according  to  the  date  of  the  official  notification  of  their  arrival. 

"The  present  regulation  shall  not  occasion  any  change  respecting 
the  representative  of  the  Pope. 

"Art.  V.  There  shall  be  a  regular  form  adopted  by  each  state  for 
the  reception  of  diplomatic  characters  of  every  class. 

"Art.  VI.  Ties  of  consanguinity  or  family  alliance  between  courts 
confer  no  rank  on  their  diplomatic  agents.  The  same  rule  also  ap- 
plies to  political  alliances. 

"Art.  VII.  In  acts  or  treaties  between  several  powers  that  admit 
alternity.  the  order  which  is  to  be  observed  in  the  signatures  of 
ministers  shall  be  decided  by  ballot."    1  Ilertslet,  02. 

At  the  Congress  of  Aix-la-Chappelle,  article  VIII  was  added, 
though  Spain,  Portugal,  and  Sweden  were  not  parties  to  it: 

"Art.  VIII.  It  is  agreed  between  the  five  courts  that  ministers  res- 
ident accredited  to  them  shall  form,  with  respect  to  their  precedence, 
an  intermediate  class  between  Ministers  of  the  second  class  and 
Cl).u.mjs  d'Ailaires."    1  Uertslet,  575. 

Instructions  to  Diplomatic  Officers  of  the  United  States,  18U7,  were 
in  accord  with  tne  provisions  of  the  Treaties  of  Vienna  and  Aix-la- 
Chappelle: 

"Article  I.  Diplomatic  agents  are  divided  into  three  classes:  That 
of  ambassadors,  legatees,  or  nuncios;  that  of  envoys,  ministers,  or 
other  persons  accredited  to  sovereigns ;  that  of  charges  d'affaires 
accredited  to  sovereigns ;  that  of  charges  d'affaires  accredited  to 
ministers  for  foreign  affairs." 

5  "By  a  law  of  December  22,  12G8,  an  ambassador  was  not  allowed 
to  be  accompanied  by  his  wife,  lest  she  divulge  his  business ;  but  he 
was  requiied  to  take  his  own  cook,  lest  he  be  poisoned."  1  Hill, 
History  of  European  Diplomacy,  p.  3G0. 


§  55)  DIPLOMATIC    AGENTS.  161 

sions  became  common.®  The  post  of  foreign  representative 
was  not  a  popular  one  in  the  early  days,  either  in  the  sending 
or  receiving  state,  and  laws  were  sometimes  passed  fixing  the 
penalty  for  delaying  or  declining  to  undertake  a  diplomatic 
mission.  The  office  has,  however,  steadily  gained  in  dignity 
and  honor,  particularly  since  the  Treaty  of  Westphalia  in  IG  IS. 

The  ranking  of  diplomats,  at  length  settled  in  1815,  is  now 
a  matter  of  far  less  significance  than  in  early  days  of  perma- 
nent missions,  when  struggles  for  precedence  often  led  to  phys- 
ical encounters  between  the  suites  of  representatives  of  rival 
states. '^ 

(a)  Diplomatic  agents  of  the  first  rank,  ambassadors,  legates, 
and  nuncios,  are  theoretically  held  to  represent  the  person  and 
majesty  of  the  accrediting  sovereign.    In  states  recognizing  the 

8  Nys,  Les  Origines  clu  droit  international,  p.  297. 

f  Wicquefort  recounts  many  instances  of  contests  in  regard  to  prece- 
dence. Of  an  encounter  between  the  followers  of  Yatteville,  the 
French  Ambassador,  and  those  of  Destrades,  the  Spanish  Ambassa- 
dor, in  London  in  16G1,  he  says: 

"They  were  both  to  send  their  coaches  to  meet  Count  Brahe,  Em- 
bassador from  Sweden,  on  the  Day  of  his  Entry.  And  for  as  much 
as  they  made  no  doubt,  but  there  would  be  a  Contest  about  the  Rank, 
they  each  of  them  took  those  Measures  they  judg'd  necessary  to  pro- 
cure the  Advantage  to  his  own  side.  Vatteville  sent  for  some  Soldiers 
from  Ostend,  made  sure  of  several  English ;  and  instead  of  Traces, 
had  caus'd  Chains  of  a  moderate  Thickness  to  be  cover'd  with 
Leather,  that  they  might  not  be  liable  to  be  cut.  Destrades  had 
indeed  reiuforc'd  his  Equipage  a  little;  but  not  expecting  things 
would  come  to  such  Extremities,  he  had  not  taken  all  the  Precau- 
tious, which  might  have  protected  him  from  the  Violence  of  others. 

"The  Duke  of  York,  who  fear'd  and  foresaw  the  Disorder,  had 
caus'd  a  Troop  of  Horse,  and  three  Companies  of  his  Regiment  of 
Foot  to  be  drawn  out;  but  as  the  Officers  had  no  Orders  to  meddle 
with  the  Quarrel  of  the  Embassadors,  all  they  could  do,  was  to  be 
Spectators  of  the  Fight  and  Confusion.  Some  of  the  French  Embas- 
sador's Coach-Horses  were  kill'd,  as  well  as  two  or  three  of  his 
People.  There  were  also  some  Spaniards  who  lost  their  Lives,  but 
yet  they  carry'd  the  Day,  because  Destrades'  Coach  could  not  move 
without  Horses.  It  was  in  Consequence  of  this  Disorder,  and  of  the 
Complaints  Destrades  made  thereof,  that  the  King  of  England  or- 
dain'd,  that  the  foreign  Ministers'  Coaches  should  not  for  the  future 
attend  at  this  kind  of  Ceremonies."  Wicquefort,  The  Embassador  and 
his  Functions,  p.  220. 

WiLS.lNT.L.— 11 


162  DIPLOMATIC   RELATIONS.  (Ch.  5 

papal  supremacy,  the  papal  representatives  may  be  given  prec- 
edence in  their  class. 

(b)  The  diplomatic  agents  of  the  second  class,  envoys  and 
ministers,  are  not  considered  as  representing  the  person  of  the 
sovereign,  but  as  representing  the  state. 

(c)  Ministers  resident  are  usually  upon  less  important  mis- 
sions. The  institution  of  this  rank  in  1818  was  not  necessary, 
as  the  Congress  of  Vienna  provided  for  the  inclusion  in  the 
second  class  of  "other  persons  accredited  to  sovereigns,"  and 
these  resident  ministers  are  within  this  category. 

(d)  The  fourth  class,  charges  d'affaires,  are  accredited  by 
and  to  the  ministers  of  foreign  affairs. 

While  the  expediency  of  sending  ambassadors  to  represent 
the  United  States  had  often  been  discussed,®  the  United  States 
had  not  been  represented  by  diplomatic  agents  of  the  grade  of 
ambassadors  until  after  the  act  of  March  1,  1893.  By  this  act 
it  was  provided  that,  "whenever  the  President  shall  be  advised 
that  any  foreign  government  is  represented  or  is  about  to  be 
represented  in  the  United  States  by  an  ambassador,  envoy  ex- 
traordinary, minister  plenipotentiary,  minister  resident,  or  spe- 
cial, envoy  or  charge  d'aft'aires,  he  is  authorized  in  his  discre- 
tion to  direct  that  the  representative  of  the  United  States  to 
such  government  shall  bear  the  same  designation.  This  provi- 
sion shall  in  no  wise  affect  the  duties,  powers,  or  salary  of 
such  representative."  ^  In  accord  with  this  act  the  United 
States  has  gradually  appointed  ambassadors  to  the  more  im- 
portant courts  of  the  world. 

APPOINTMENT. 

56.  As  a  diplomatic  agent  is  supposed  to  represent  tlie  state, 
he  is  usually  appointed  by  the  head  of  the  state,  or 
by  some  authorized  executive  officer.  Confirmation  of 
the  appointment  may  or  may  not  be  required. 

In  many  states  the  diplomatic  agents,  except  charges  d'af- 
faires, are  still,  as  almost  universally  in  early  times,  regarded 

8  7  Moore,  American  Diplomacy,  p.  263. 

»  27  Stat.  497,  c.  182  (U.  S.  Comp.  St.  1901,  p.  1152). 


§  56)  ArroiNTMENT.  163 

as  the  personal  representatives  of  the  sovereign,  and  as  such 
are  appointed  by  and  responsible  to  him. 

Sometimes  confirmation  of  the  appointment  may  be  requir- 
ed by  the  fundamental  law  of  a  state.  This  v^ould  ordinarily 
be  the  case  in  republics,  where  there  might  be  fear  of  too  great 
centralization  of  power  in  the  hands  of  the  head  of  the  state. 

The  Constitution  of  the  United  States  provides  that  the 
President  "shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate,  shall  appoint  ambassadors,  other  public  min- 
isters and  consuls."  ^'^ 

By  an  act  of  Congress  the  President  of  the  United  States  "is 
authorized  to  prescribe  such  regulations  for  the  admission  of 
persons  into  the  civil  service  of  the  United  States  as  may  best 
promote  the  efficiency  thereof,  and  ascertain  the  fitness  of  each 
candidate  in  respect  to  age,  health,  character,  knowledge,  and 
ability  for  the  branch  of  service  into  which  he  seeks  to  en- 
ter." ^^  By  an  executive  order  of  November  26,  1909,  Presi- 
dent Taft,  on  recommendation  of  Secretary  Knox,  directed 
that  promotions  within  the  diplomatic  service  be  based  on  "spe- 
cial capacity"  and  that  initial  appointments  from  the  outside 
to  secretaryships  be  based  upon  stated  examinations. 

"The  examinations  shall  be  both  oral  and  in  writing,  and 
shall  include  the  following  subjects:  International  law,  diplo- 
matic usage,  and  a  knowledge  of  at  least  one  modern  language 
other  than  English,  to  wit,  French,  Spanish,  or  German ;  also 
the  natural,  industrial  and  commercial  resources  and  the  com- 
merce of  the  United  States,  especially  with  reference  to  the 
possibilities  of  increasing  and  extending  the  trade  of  the 
United  States  with  foreign  countries ;  American  history,  gov- 
ernment and  institutions ;  and  the  modern  history  since  1850 
of  Europe,  Latin  America  and  the  Far  East.  The  object  of 
the  oral  examination  shall  also  be  to  determine  the  candidate's 
alertness,  general  contemporary  information,  and  natural  fit- 
ness for  the  service,  including  mental,  moral,  and  physical 
qualifications,  character,  address,  and  general  education  and 
good  command  of  English.  In  this  part  of  the  examination 
the  applications  previously  filed  will  be  given  due  weight  by 
the  Board  of  Examiners.     In  the  determination  of  the  final 

10  Art.  2,  §  2.       11  Rev.  St.  §  1753  (U.  S.  Comp.  St.  1901,  p.  1200). 


104  DirLOMATIC   RELATIONS.  (Ch.  5 

rating,  the  written  and  oral  ratings  shall  be  of  equal  weight.  A 
physical  examination  shall  also  be  included  as  supplemental. 

"Examination  papers  shall  be  rated  on  a  scale  of  100,  and  no 
person  with  a  general  rating  of  less  than  80  shall  be  certified 
as  eligible. 

"No  person  shall  be  certified  as  eligible  who  is  under  twenty- 
one  or  over  fifty  years  of  age,  or  who  is  not  a  citizen  of  the 
United  States,  or  who  is  not  of  good  character  and  habits  and 
physically,  mentally,  and  temperamentally  qualified  for  the 
proper  performance  of  diplomatic  work,  or  who  has  not  been 
specially  designated  by  the  President  for  appointment  to  the 
diplomatic  service  subject  to  examination  and  subject  to  the 
occurrence  of  an  appropriate  vacancy." 

"In  designations  for  appointment  subject  to  examination  and 
in  appointments  after  examination,  due  regard  will  be  had  to  the 
rule  that,  as  between  candidates  of  equal  merit,  appointments 
should  be  made  so  as  to  tend  to  secure  proportional  representa- 
tion of  all  the  states  and  territories  in  the  diplomatic  service ; 
and  neither  in  the  designation  for  examination  or  certification 
or  appointment  after  examination  will  the  political  affiliations 
of  the  candidates  be  considered." 

This  order  does  not  necessarily  preclude  the  appointment  of 
such  persons  as  the  President  may  deem  suitable  to  the  higher 
diplomatic  posts,  but  provision  is  made  that  "the  Secretary  of 
State  is  hereby  directed  to  report  from  time  to  time  to  the 
President,  along  with  his  recommendations,  the  names  of  those 
secretaries  of  the  higher  grades  in  the  diplomatic  service  who 
by  reason  of  efficient  service  have  demonstrated  special  capacity 
for  promotion  to  be  chiefs  of  mission." 

THE    RIGHT    OF   LEGATION. 

57.  Tie  right  of  legation  involves  tlie  right  to  send  and  the 
right  to  receive  diplomatic  agents,  and  in  its  fullness 
is  possessed  only  by  states  having  unqualified  sover- 
eignty. 

The  choice  and  sending  of  a  diplomatic  agent  is  usually  re- 
garded as  an  act  of  the  sovereign  person  or  of  his  representa- 
tive.   Diplomatic  agents  of  the  first  three  grades  are  accredited 


§  57)  THE    RIGHT   OF    LEGATION.  165 

to  the  sovereign  person,  and  of  the  fourth  grade  to  his  min- 
ister of  foreign  affairs.  The  diplomatic  agent  bears  a  letter  of 
credence,  which  gives  his  name,  the  grade  and  object  of  his 
mission,  and  requests  favorable  and  full  credence  for  him  as 
the  representative  of  the  state. 

While  it  is  generally  maintained  that  a  state  which  is  a  mem- 
ber of  the  family  of  nations  should  receive  a  diplomatic  agent 
from  another  state  of  the  family,  it  is  also  established  that  it 
may  decline  to  receive  a  person  who  is  not  acceptable.  Such 
action  does  not  imply  any  unfriendly  disposition  or  discourtesy, 
but  may  be  rather  an  expression  of  the  belief  that  the  partic- 
ular person  is  not  the  one  to  carry  on  acceptably  and  to  the  sat- 
isfaction of  both  states  their  mutual  intercourse.  Under  such 
circumstances  the  receiving  state  may  indicate  that  the  person 
suggested  is  a  persona  non  grata.  No  reason  need  be  given  in 
such  a  case,  though  reasons  are  sometimes  asked  and  given. 

Among  European  countries  it  is  customary  to  inquire  in  ad- 
vance as  to  the  acceptability  of  a  given  person  as  a  diplomatic 
representative.  The  United  States  had  not  been  accustomed 
to  take  any  such  preliminary  step  until  the  practice  of  sending 
ambassadors  arose.  On  several  occasions  there  has  been  con- 
siderable discussion  in  consequence  of  appointments  made  by 
the  United  States.  In  1885  Italy  informed  the  United  States 
that  Mr.  Keiley,  in  consequence  of  certain  utterances  at  a  pub- 
lic meeting  in  1871,  would  not  be  a  persona  grata  as  United 
States  Minister  to  Italy,  and  Mr.  Keiley  returned  his  commis- 
sion to  the  President.^- 

The  subsequent  appointment  of  Mr.  Keiley  as  Minister  to 
Austria-Hungary  led  to  extended  correspondence  and  a 
formal  statement  of  the  objections  of  Austria-Hungary.^^ 
The  President's  message  of  December  8,  1885,  says  of  this 
episode :  "The  Austro-Hungarian  Government  finally  decided 
not  to  receive  Mr.  Keiley  as  the  envoy  of  the  United  States, 
and  that  gentleman  has  since  resigned  his  commission,  leaving 
the  post  vacant.  I  have  made  no  new  nomination,  and  the  in- 
terests of  this  government  at  Vienna  are  now  in  the  care  of  the 
secretary  of  legation,  acting  as  charge  d'affaires  ad  interim." 

12  Foreign  Relations  U.  S.,  1S85,  p.  550. 

13  Id.  p.  55.  See,  for  other  cases,  Fostex-,  The  Practice  of  Diplo- 
macy, c.  III. 


1G6  DIPLOMATIC   RELATIONS,  (Ch.  5 

It  is  obviously  to  the  advantage  of  both  sending  and  receiv- 
ing state  that  the  diplomatic  representative  who  is  to  carry  on 
business  between  them  should  be  a  persona  grata,  and  it  seems 
to  be  in  no  way  a  derogation  of  sovereignty  to  inquire  in  ad- 
vance whether  a  given  person  is  wholly  acceptable.  It  is  not  an 
objection  to  the  reception  of  a  diplomatic  representative,  but 
an  objection  to  receiving  a  particular  person  in  that  capacity, 
which  is  raised. 

SUITE  OF  DIPLOMAT, 

58.  The  personnel  of  a  mission  varies  according  to  the  nature 

of  the  mission,  but  is  usually  both  official  and  non- 
official.  The  official  suite  includes  those  directly  in  the 
service  of  the  mission,  and  the  nonofficial  suite  in- 
cludes those  directly  connected  T^ith  the  diplomat's 
household. 

(a)  The  official  suite  of  a  diplomatic  representative  varies 
greatly  under  differing  conditions.  The  official  suite  may  in- 
clude (1)  counselors;  (2)  secretaries;  (3)  attaches,  military, 
naval,  etc.;  (4)  interpreters  and  dragomans;  (5)  clerks;  (G) 
couriers  ;  (7)  chaplain  ;  (8)  doctor ;  and  other  persons  distinct- 
ly in  the  official  service.  The  United  States  recently  author- 
ized ten  "student  interpreters"  for  China  and  six  for  Japan. ^* 

(b)  The  nonofficial  suite  includes  (1)  the  family  and  (2) 
those  attached  to  the  minister  for  the  service  in  his  household, 
as  the  private  secretaries,  chaplain,  doctor,  and  domestic  serv- 
ants. 

CREDENTIAIiS,  ETC.,  OF  DIPLOMAT. 

59.  Letters  of  credence  from  the  head  of  the  sending  state  to 

the  head  of  the  receiving  state  are  given  to  diplomatic 
representatives  of  the  grades  above  charges  d'affaires. 
Similar  letters  from  and  to  respective  foreign  offices 
are  given  the  charges  d'affaires. 
Diplomatic  representatives  are  also  given  instructions 
for  their  guidance  in  international  negotiations  and 
such  other  documents  as  may  be  essential  to  the  effec- 
tive performance  of  their  mission. 

The  letters  of  credence  given  by  different  states  and  under 
different  circumstances   may  vary   somewhat,  but  in   general 

14  Acts  approved  March  12,  1904,  and  June  16,  1906. 


§  59)  CREDENTIALS,  ETC.,  OF    DIPLOMAT.  167 

give  the  name  of  the  representative,  the  character  and  general 
object  of  the  mission,  and  a  request  for  favorable  reception  and 
treatment  of  the  diplomat.^^  A  representative  on  a  permanent 
mission  needs  no  further  authorization  for  the  transaction  of 
ordinary  business ;  but  for  any  special  negotiation,  as  of  a 
treaty  or  convention,  he  would  generally  require  authorization 
by  a  special  grant,  called  "full  powers."  Similarly  diplomats 
on  a  special  mission  require  full  powers.  Full  powers  are  us- 
ually given  in  an  open  letter,  signed  by  the  head  of  the  state, 
and  may  be  unlimited  and  general,  or  limited  and  special.  By 
the  constitution  of  some  states  treaties  must  receive  the  assent 
of  some  body  within  the  states  before  becoming  operative.  The 
full  powers  of  representatives  of  such  states  would  naturally 
be  ad  referendum.  The  diplomatic  representative  also  usually 
receives  a  special  passport,  which  serves  to  identify  the  diplo- 


ic Form  of  U.  S.  Letter  of  Credence: 

"A B "President  of  the  United 

States  of  America. 
"To 


"Great  and  Good  Fi-iend: 

"I  have  made  choice  of one  of  our  distinguished  cit- 
izens, to  reside  near  the  Government  of  Your   in  the 

quality  of He  is  well  informed  of  the  relative  interests 

of  the  two  countries  and  of  our  sincere  desire  to  cultivate  to  the 
fullest  extent  the  friendship  which  has  so  long  subsisted  between 
the  two  Governments.  My  knowledge  of  his  high  character  and  abil- 
ity gives  me  entire  confidence  that  he  will  constantly  endeavor  to 
advance  the  interest  and  prosperity  of  both  Governments,  and  so 
render  himself  acceptable  to  Your 

"I  therefore  request  Your  to  receive  him  favorably- 

and  to  give  full  credence  to  what  he  shall  say  on  the  part  of  the 
United  States,  and  to  the  assurances  which  I  have  charged  him  to 
convey  to  you  of  the  best  wishes  of  this  Government  for  the  pros- 
perity of 

"May  God  have  Your in  His  wise  keeping. 

"Written  at  Washington  this day  of ^ . .  in 

the  year  

"Your    good    friend, 
"By  the  President,  "A B 


"Secretary  of  State," 


1G8  DIPLOMATIC   RELATIONS.  (Cb.  5 

mat  in  his  official  capacity.  This  "differs  from  the  ordinary 
passport,  in  that  it  usually  describes  the  official  rank  or  occupa- 
tion of  the  holder,  and  often  also  the  purpose  of  his  traveling 
abroad,  while  generally  omitting  the  description  of  his  per- 
son." ^"^  The  passports  are  dcjiosited  with  the  Foreign  Office 
of  the  state  to  which  he  is  accredited,  and  remain  there  until  he 
requests  them  when  he  leaves  his  post,  or  until  they  are  given 
to  him  as  an  intimation  that  he  is  to  retire. 

Other  papers,  such  as  may  be  necessary  for  the  business  of 
the  mission,  are  also  given  to  the  diplomat.  These  are  such  as 
special  or  general  instructions,  etc. 

COMMENCEMENT    OF    MISSION. 

60.  A  diplomatic  mission  to  a  specified  state  commences  -when 
proper  credentials  liave  been  presented  to  and  received 
by  tbe  government  to  whicb  the  diplomatic  representa- 
tive is  accredited.  A  diplomatic  mission  to  a.  congress 
or  conference  of  diSerent  states  commences  when  prop- 
er credentials  are  exchanged  v^ith  other  similar  agents. 

The  ceremonial  for  the  presentation  and  reception  of  diplo- 
matic agents  was  formerly  very  elaborate,  as  the  idea  of  per- 
sonal sovereignty  dictated. 

"It  may  not  be  unfortunate  that  the  monarch  placed  a  high 
estimate  upon  the  sovereign  office,  and  devised  a  ceremonial 
commensurate  with  this  estimate ;  for  what  was  once  done  out 
of  respect  for  and  in  response  to  the  demand  of  a  personal 
sovereign  is  now  done  out  of  respect  for  the  dignity  of  the 
state  itself.  Thus,  in  the  days  of  more  democratic  sovereign- 
ties, international  representatives  are  clothed  with  a  dignity 
which  both  elevates  the  attitude  of  participants  in  international 
negotiations  and  gives  greater  weight  to  their  conclusions. 
The  ceremonial  also  fixes  a  definite  course  of  procedure,  which 
any  state  may  follow  without  giving  offense  to  another,  wheth- 
er it  be  weak  or  powerful. 

"While  the  minor  details  of  the  ceremonial  of  reception  of  a 
diplomatic  agent  are  not  invariable,  certain  customs  are  well 
established.  A  diplomat  officially  notifies  the  receiving li^ate  of 
his  arrival  by  sending,  (1)  if  he  be  of  the  first  rank,  a  secretary 

le  Tlie  American  Passport,  U.  S.  Dept.  of  State,  p.  7. 


§  61)       PRIVILEGES   AND   PREROGATIVES   OF    DIPLOMAT.         1G9 

of  the  embassy  to  the  Minister  of  Foreign  Affairs,  with  a  copy 
of  his  letter  of  credence  and  a  request  for  a  day  and  hour  when 
he  may  have  an  audience  with  the  head  of  the  state,  in  order 
to  present  his  credentials ;  (2)  if  of  the  second  rank,  while 
sometimes  the  above  procedure  is  allowed,  he  usually  makes 
the  announcement  and  request  in  writing;  (3)  if  of  the  third 
rank,  he  always  observes  the  last-mentioned  procedure;  (4)  if 
of  the  fourth  rank,  charge  d'affaires,  he  notifies  the  Minister 
of  Foreign  Affairs  of  his  arrival  and  requests  an  audience. 

"The  audience  may  be  for  any  grade  more  or  less  formal, 
public  or  private.  Usually  diplomats  of  the  first  rank  are  re- 
ceived in  public  audience.  At  the  audience  the  diplomat  pre- 
sents his  letter  of  credence,  and  usually  makes  a  brief  address, 
of  which  he  has  earlier  furnished  a  copy  to  the  INIinister  of 
Foreign  Affairs,  in  order  that  a  suitable  reply  may  be  prepared. 
Diplomats  of  the  second  rank  customarily  receive  a  similar  sol- 
emn audience.  This  may  or  may  not  be  granted  to  ministers  of 
the  third  rank.  Official  visits,  varying  somewhat  in  ceremonial 
in  different  states,  follow."  ^^ 

PRIVILEGES   AND    PREHOGATIVES    OF   DIPIiOMAT. 

61.    Diplomatic  representatives  are  now  generally  accorded: 

(a)  Inviolability. 

(b)  Exemption  of  person  from   criminal   and   civil  jurisdic- 

tion. 

(c)  Immunity  of  domicile.     (Francbise  de  I'botel.) 

(d)  Riglit   of  asylum. 

(e)  Rigbt  of  religion.      (Droit  de  culte.) 

(f)  Jurisdiction  -ivitbin  domicile. 

(g)  Precedence,  ceremonial  prerogatives,  according  to  rank. 

(a)  Inviolability  of  person  is  necessary,  in  ordor  that  a  diplo- 
mat, as  representative  of  a  state,  may  be  free  in  the  perform- 
ance of  his  functions.  Inviolability  has  been  granted  from 
early  times,  and,  according  to  Roman  Law,  "Sancti  habentur 
legati."  In  earliest  times  ambassadors  were  usually  chosen 
from  the  priestly  class. 

Inviolability  extends  to  diplomats  of  all  grades ;  to  the  suite, 
official  and  nonofficial ;    to  the  official  residence,  archives,  and 

IT  Wilson  &  Tucker,  Int.  Law  (5th  Ed.)  p.  172. 


170  DIPLOMATIC   RELATIONS.  (Ch.  5 

letters ;  and  to  all  that  belong-s  to  the  mission  and  is  necessary 
for  its  maintenance.^^  Inviolability  and  such  immunities  as  are 
necessary  for  convenient  passage  are  usually  conceded  to  a 
diplomat  while  he  is  passing  to  or  from  his  post  through  a 
third  state  and  so  long  as  he  retains  his  official  character. 

A  diplomatic  representative  is,  of  course,  liable  to  the  conse- 
quences to  which  he,  acting  in  his  private  capacity,  may  volun- 
tarily expose  himself,  as  in  dueling;  and  he  may  be  restrained 
to  such  an  extent  as  may  be  necessary  to  prevent  him  from  will- 
fully injuring  the  state  or  nationals  of  the  state  to  which  he  is 
accredited.  Physical  force  should  be  used  against  an  ambas- 
sador only  as  a  last  resort.  Force  may  be  used  in  self-defense. 
In  case  he  disturbs  the  internal  peace  of  the  state,  his  recall 
may  be  requested,  or  in  an  extreme  case  he  may  be  expelled. 

A  diplomatic  agent's  public  character  and  reputation  is  en- 
titled to  protection  and  respect.  Whenever  he  engages  in  non- 
diplomatic  undertakings,  as  in  writing  or  lecturing  upon  reli- 
gious or  literary  suljjects,  he  is  not  exempt  from  criticism 
which  may  follow. 

(b)  It  is  now  generally  accepted  that  diplomatic  representa- 
tives are  exempt  from  prosecution  and  punishment  for  viola- 
tion of  criminal  law.  This  does  not  free  him  from  the  obliga- 
tion to  respect  the  law  enacted  to  insure  the  well-being  of  the 
state  in  which  he  is  sojourning,  but  removes  him  from  the  legal 
authority  of  the  state.  For  failure  to  observe  law,  a  diplomat 
may  be  requested  to  leave  a  state,  or  in  an  extreme  case  may 
be  expelled. ^° 

The  diplomatic  representative  is  also  free  from  civil  juris- 
diction. He  cannot  be  pursued  for  debt ;  neither  is  his  property 
liable  to  seizure.  If  he  engages  in  business  in  a  private  ca- 
pacity, his  property  thus  engaged  is  liable,  though  he  may  not 
be  constrained  in  such  manner  as  to  interfere  with  the  perform- 
ance of  his  diplomatic  functions.^** 


18  By  article  46  of  the  Hague  Convention  for  the  Pacific  Settlement 
of  International  Disputes  the  members  of  the  Tribunal  in  service 
abroad  enjoy  diplomatic  privileges  and  immunities,  and  by  article 
13  of  the  Priz-e  Court  Convention  its  judges  have  similar  treatment. 

19 ,3  Phillimore,  Int.  Law,  160  et  seq. 

20  Rev.  St.  U.  S.  §§  4063,  4004  (U.  S.  Comp.  St.  1901,  pp.  2760,  2761). 


§  61)        PRIVILEGES   AND    PREROGATIVES   OF    DIPLOMAT  171 

He  is  also  exempt  from  witness  duty.  United  States  diplo- 
matic representatives  are  instructed  not  to  testify  without  con- 
sent of  the  President.-^  In  the  trial  of  the  murderer  of  Presi- 
dent Garfield,  the  Minister  from  Venezuela,  under  instructions 
from  his  government,  waived  his  rights  to  immunity  and  ap- 
peared "as  a  witness  in  the  case,  the  same  as  any  witness  who 
is  a  citizen  of  this  country."  -^  The  more  common  method  is 
.for  a  diplomatic  representative  to  give  testimony  in  the  form 
of  a  deposition  as  an  act  of  courtesy. 

A  diplomatic  representative  is  exempt  from  direct  personal 
taxes,  and  the  property  of  the  mission  is  also  usually  exempt 
from  general  taxes.  The  property  may  be  held  liable  to  as- 
sessments for  betterments,  as  for  construction  of  sewers,  or 
for  taxes  for  objects  which  serve  the  property,  as  for  water, 
light,  etc.,  though  in  many  cases  these  are  also  waived.  A  dip- 
lomat is  also  usually  allowed  to  bring  in  goods  for  his  private 
use  free  of  duty.  Sometimes  the  principle  of  reciprocity  is  fol- 
lowed in  making  exemptions.-^ 

Diplomatic  representatives  are  also  exempt  from  the  ordi- 
nary police  regulations.  This  exemption  is  not  to  be  construed 
as  a  license  to  disregard  the  regulations  prescribed  for  the  safe- 
ty of  the  community.  The  diplomatic  officer  is  supposed  to  be 
carefully  observant  of  the  law  of  the  state  in  which  he  is  so- 
journing, in  order  that  his  presence  may  be  acceptable  and  his 
service  may  be  most  effective,  because  free  from  friction.  A 
diplomatic  representative  who  disregards  local  police  regula- 
tions, as  by  driving  a  vehicle  at  a  speed  beyond  the  limits  pre- 
scribed to  insure  public  safety,  may  be  restrained,  though  he 
may  not  be  punished. 

"In  considering  the  immunities  of  diplomatic  officers,  it  is 
important  to  draw  a  distinction,  which,  it  is  believed,  has  not 
usually  been  noticed,  between  measures  of  punishment  and 
measures  of  prevention.  The  theory  of  diplomatic  immunity 
is,  not  that  the  diplomatic  officer  is  freed  from  the  restraints 
of  the  law  and  exempt  from  the  duty  of  observing  them,  but 
only  that  he  cannot  be  punished  for  his  failure  to  respect  them. 
The  punitive  power  of  the  state  cannot  be  directly  enforced 

21  Foreign  Relations  U.  S.,  1804,  p.  426. 

22  1  Guiteau's  Trial,  p.  136.  23  4  Moore,  §  667. 


172  DIPLOMATIC   RELATIONS.  (Cll.  5 

against  him.  It  will  hardly  be  denied,  however,  that  it  is  his 
duty  to  respect  the  laws  of  the  country  in  which  he  resides, 
and  that  he  may  in  many  conceivable  cases  be  prevented  from 
doing  unlawful  acts,  for  which,  if  he  were  allowed  to  commit 
them,  he  could  not  be  punished.  This  distinction  is  peculiarly 
applicable  to  police  regulations  made  for  the  purpose  of  as- 
suring the  public  health  and  safety."  ^* 

(c)  The  domicile  of  a  diplomatic  officer,  including  his  house, 
grounds,  buildings,  and  appurtenances,  including  carriages,  is 
considered  exempt  from  local  jurisdiction.  This  franchise  de 
I'hotel  in  earlier  days  extended  to  considerable  areas,  franchise 
du  quaticr,  and  in  some  states  certain  areas  are  still  set  apart 
for  the  foreign  embassies.^  ^ 

(d)  The  so-called  right  of  asylum  in  the  house  of  a  diplomat- 
ic officer  was  once  considered  as  a  sort  of  corollary  to  the  im- 
munity of  the  domicile  of  the  ambassador.  So  early  as  the  days 
of  Grotius  this  right  was  questioned,  and  the  writings  of  his 
successors  in  the  seventeenth  and  eighteenth  centuries  gen- 
erally gave  it  less  and  less  sanction.  Officers  of  the  state  in 
which  an  embassy  is  located  are  not  entitled  to  enter  without 
permission.  Temporary  shelter  may  therefore  be  secured  when 
a  fugitive  enters  the  embassy.  On  demand  of  the  proper  of- 
ficial, the  fugitive  should  be  surrendered,  unless  he  belongs  to 
the  embassy.  The  United  States  advises  its  diplomatic  officers 
that  "the  privilege  of  immunity  from  local  jurisdiction  does 
not  embrace  the  right  of  asylum  for  persons  outside  of  a  rep- 
resentative's diplomatic  or  personal  household."  ^^  In  practice 
the  grant  of  asylum  has  been  more  common  in  states  where  the 
political  conditions  were  unstable,  or  in  time  of  revolution  to 
political  offenders. 

(e)  The  diplomatic  officer  is  allowed  within  his  grounds 
freedom  of  worship,  and  often  the  services  are  open  to  the  pub- 
lic, though  it  is  held  that  an  attempt  to  induce  the  public  to 
enter  by  the  ringing  of  a  bell  or  otherwise  may  raise  objection. 

(f)  As  local  jurisdiction  does  not  extend  to  the  house  and 

24  4  Moore,  §  669. 

25  For  description  of  the  Legation  Quarter  in  Pelcing,  see  Appendix 
Foreign  Relations  U.  S..  1901,  p.  3.30. 

2  6  Instructions  to  Diplomatic  Officers,  1897,  §  50. 


§  61)        PRIVILEGES   AND   PREROGATIVES    OF    DIPLOMAT.         173 

grounds  of  the  diplomatic  representative,  it  is  customary  to 
grant  to  him  jurisdiction  within  his  residential  and  official  dom- 
icile. This  is  now  held  to  give  to  an  ambassador  jurisdiction. 
general  charge  over  his  retinue,  and  the  right  to  arrest  and  send 
home  for  trial  any  one  of  his  suite.  Sometimes,  when  crimes 
are  committed  outside  the  embassy,  the  ambassador  turns  the 
offender  over  to  the  local  authorities  for  trial. 

(g)  Questions  of  precedence  and  prerogatives  received  much 
attention  in  early  days."^  Precedence  was  fairly  well  establish- 
ed by  the  Congresses  of  Vienna,  1815,  and  Aix-la-Chapelle, 
ISIS.  x\t  this  time  it  was  established  that  precedence  among 
diplomats  of  the  same  rank  should  be  according  to  the  date  of 
the  official  notification  of  their  arrival.  "A  diplomat  officially 
notifies  the  receiving  state  of  his  arrival  by  sending,  (1)  if  he 
be  of  the  first  rank,  a  secretary  of  the  embassy  to  the  Minister 
of  Foreign  Affairs,  with  a  copy  of  his  letter  of  credence  and  a 
request  for  a  day  and  hour  when  he  may  have  an  audience 
with  the  head  of  the  state  in  order  to  present  his  credentials ; 
(2)  if  of  the  second  rank,  wdiile  sometimes  the  above  procedure 
is  allowed,  he  usually  makes  the  announcement  and  request  in 
writing;  (3)  if  of  the  third  rank,  he  always  observes  the  last- 
mentioned  procedure;  (4)  if  of  the  fourth  rank,  charge  d'af- 
faires, he  notifies  the  Minister  of  Foreign  Affairs  of  his  arrival 
and  requests  an  audience."  ^^  The  precedence  among  the  differ- 
ent classes  is  for  social  purposes  according  to  grade.  In  states 
receiving  representatives  of  the  Pope,  these  representatives  are 
usually  given  precedence,  regardless  of  the  date  of  arrival.  In 
some  states  precedence  for  business  purposes  is  also  accord- 
ing to  grade;  i.  e.,  an  ambassador,  having  right  of  personal 
access  to  the  sovereign,  arriving  late  at  the  residence  of  the 
sovereign  or  at  a  foreign  office,  would  precede  ministers  al- 
ready waiting  to  transact  business  with  the  sovereign  or  with 
the  foreign  secretary.  In  Turkey  ambassadors  claim  and  have 
access  to  the  Sultan  as  the  personal  representatives  of  their  sov- 
ereigns. The  representatives  of  the  United  States,  being  for 
many  years  of  the  grade  of  minister,  found  it  difiicult  to  ob- 

2  7  Wicquefort,  The  Ambassador  acfd  his  Functions  (Digby's  Trans.) 
p.  201;  Bynkershoelv,  De  Foro  I^gatorium,  cc.  I  and  XII. 
28  Wilson  &  Tucker,  Int.  Law  (.5th  Ed.)  p.  172. 


174  DIPLOMATIC   RELATIONS.  (Cll.  5 

tain  from  the  Sultan  prompt  consideration  for  their  business. 
President  McKinley  proposed  to  Turkey  the  mutual  appoint- 
ment of  ambassadors.  The  proposition  was  renewed  by  Presi- 
dent Roosevelt;  but  it  was  not  until  after  the  passage  of  the 
act  of  Congress  of  June  16,  1906,  providing  for  the  salary  of 
an  ambassador  to  Turkey,  that  Turkey  heeded  the  wishes  of 
the  United  States."''  Until  1872  it  was  the  custom  for  an  am- 
bassador to  take  precedence  at  the  foreign  office,  even  though 
a  minister  might  be  waiting  when  he  arrived.  This  caused 
some  friction  at  that  time  between  the  United  States  Minister 
to  Germany,  Mr.  Bancroft,  and  the  British  ambassador.  The 
rule  was  established  for  the  German  court  that  the  chief  of  a 
mission  arriving  first  should  be  first  admitted,  regardless  of 
rank.    This  rule  is  now  generally  followed. 

Precedence  in  conferences  and  congresses  of  states  is  now 
usually  according  to  the  French  alphabetical  order  of  the  state 
names.^"  In  signing  treaties  the  same  practice  is  now  usually 
followed,  where  a  number  of  states  are  signatories.  In  some 
treaties  the  name  of  the  representative  of  the  state  appears 
first  in  the  copy  to  be  transmitted  to  his  state. 

When  precedence  is  determined  by  nearness  to  the  person  at 
the  head  of  the  table,  the  first  place  is  on  his  right;  the  second, 
at  his  left ;  the  third,  the  second  chair  on  the  right ;  the  fourth, 
the  second  chair  on  the  left ;  and  so  to  the  foot  of  the  table. 
In  processions,  precedence  may  vary.  Sometimes  it  is  the  first 
place ;  sometimes,  the  last.  In  general,  in  relatively  short  pro- 
cessions, the  following  rules  are  observed:  If  of  two,  the  first 
has  the  precedence ;  if  of  three,  the  middle  is  the  place  of  hon- 
or, the  first  the  second  in  honor,  and  the  third  the  third  in 
honor;    if  of  four,  the  second  is  the  place  of  honor,  the  first 

2  9  34  Stat.  286. 

30  This  was  the  arrangement  at  both  the  First  Conference,  1899, 
and  the  Second  Conference,  1907,  at  The  Hague,  though  the  United 
States  as  Etats-Unis  d'Amerique  was  placed  after  Spain  (Espagne) 
in  1899,  and  as  Amgrique  (Etats-Unis  d')  was  placed  after  Germany 
(Allemagne)  in  1907.  The  use  of  the  adjective  "American,"  instead 
of  "United  Stiites,"  in  the  diplomatic  and  consular  service,  was  in 
accord  with  a  circular  of  Secretary  Hay  of  November  28,  1904.  For- 
eign Relations  U.  S.,  1904,  p.  7.  • 

The  precedence  of  ambassadors  at  Washington  has  caused  some 
discussion.    4  Moore,  p.  740,  §  683. 


§  61)       PRIVILEGES   AND    PREROGATIVES    OF    DIPLOMAT.         175 

the  second  in  honor,  the  third  and  fourth  in  place  third  and 
fourth  in  honor;  if  of  five,  the  middle  is  the  place  of  honor, 
the  place  in  advance  the  second  in  honor,  the  fourth  place  the 
third  in  honor,  the  first  place  the  fourth  in  honor,  and  the  fifth 
place  the  fifth  in  honor.^^ 

The  ceremonial  for  the  reception  of  different  grades  of  dip- 
lomats varies.  Their  prerogatives  were  formerly  matters  of 
grave  concern.  The  different  grades  are  now  usually  entitled 
to  salutes  by  cannon  according  to  rank :  The  ambassador,  nine- 
teen guns;  the  envoy  extraordinary  and  minister  plenipoten- 
tiary, fifteen ;  the  minister  resident,  thirteen ;  and  the  charge 
d'affaires,  eleven. 

Some  of  the  prerogatives  formerly  regarded  as  ambassa- 
dorial, such  as  the  right  to  remain  covered  in  the  presence  of 
the  sovereign  while  he  remained  covered,  the  right  to  a  dais 
and  throne  in  the  reception  chamber,  the  right  to  use  a  "coach 
and  six  with  outriders,"  etc.,  are  now  regarded  as  interesting 
survivals  of  the  days  when  personal  sovereignty  was  more  evi- 
dent in  international  relations.  The  right  to  invitation  to  of- 
ficial functions,  the  right  to  the  use  of  the  coat  of  arms  over 
the  door,  the  right  to  the  title  of  Excellency,  etc.,  are  now 
usually  conceded  without  question. 

Court  dress  or  a  diplomatic  uniform  is  worn  in  many  states. 
The  question  as  to  the  proper  dress  of  American  diplomats  has 
been  discussed  from  time  to  time.^^ 

The  entire  body  of  diplomats  accredited  to  a  state  constitute 
what  is  known  as  the  "Diplomatic  Corps."  This  body  some- 
times takes  action  upon  matters  which  alike  concern  all  the 
states  represented  or  concern  their  own  diplomatic  rights  or 

31 1  Pradier-Fodgrg,  Cours  de  droit  diplomatique,  p.  127. 
32  The  United  States  Instructions  to  Diplomatic  officers  provide: 
"67.  Military  Title  and  Uniform. — The  statute  authorizes  all  of- 
ficers who  have  served  during  the  Rebellion  as  volunteers  in  the 
Army  of  the  United  States  and  have  been  honorably  mustered  out 
of  the  volunteer  service  to  bear  the  official  title,  and,  upon  occasions 
of  ceremony,  to  wear  the  uniform  of  the  highest  grade  they  have 
held  by  brevet  or  other  commissions  in  the  volunteer  service  (Rev. 
St.  §  1226).  In  all  other  cases  diplomatic  officers  are  permitted  to 
wear  upon  occasions  of  ceremony  the  dress  which  local  usage  pre- 
scribes as  appropriate  to  the  hour  and  place.  At  some  capitals  a 
court  dress  is  prescribed  by  custom."    See,  also,  4  Moore,  §  686. 


1 76  DIPLOMATIC   RELATIONS.  (Ch.  5 

privileges.  \\nTcn  thus  acting,  the  diplomat  of  the  highest  rank 
longest  in  service  at  the  post  acts  as  "Do}en,"  or  the  head,  of 
the  "Diplomatic  Corps"  except  in  states  receiving  representa- 
tives of  the  Pope,  v^here  the  corresponding  Papal  representa- 
tive may  act  as  "Doyen,"  regardless  of  term  of  service. 


DIPLOMATIC   FUNCTIONS. 

62.  The  chief  functions  of  a  permanent  diplomatic  officer  are 
to  represent  his  state  in  negotiations  with  the  state  to 
Trhich  he  is  accredited;  to  observe  and  report  occur- 
rences xtrhich  may  affect  his  state;  to  protect  the  rights 
of  the  nationals  of  his  state.  The  functions  of  a  diplo- 
matic officer  on  a  temporary  or  special  mission  are 
usually  defined  at  the  time  of  his  appointment. 

The  general  negotiations  between  states  may  be  conducted 
betwreen  two  states  through  the  diplomatic  officers  of  either  of 
the  states  in  the  other,  and  in  some  cases  both  diplomats  and 
both  foreign  offices  may  be  concerned.  Matters  particularly 
appertaining  to  the  state  in  which  a  diplomat  is,  and  requiring 
attention  of  the  local  authorities,  are  usually  transacted  through 
the  diplomat  residing  in  the  state,  as  in  cases  of  extradition, 
where  the  procedure  may  be  prescribed  by  treaty.'^ 

In  early  days  diplomats  were  often  regarded  as  little  different 
from  spies,  and  the  means  to  which  they  sometimes  resorted  in 
order  to  obtain  information  were  sometimes  such  as  to  justify 
the  opinion.  It  is  one  of  the  main  functions  of  a  diplomatic 
officer  to  keep  his  state  informed  of  the  condition  of  affairs  in 
the  state  to  which  he  is  accredited,  and  to  send  to  his  state  such 

33  "And  the  government  of  Belgium  will,  upon  request  of  the 
government  of  the  United  States,  transmitted  through  the  diplomatic 
agent  of  the  United  States,  or,  in  his  absence,  through  the  competent 
consular  officer,  secure  in  conformity  with  law  the  provisional  arrest 
of  persons  convicted  or  accused  of  the  commission  therein  of  crimes 
or  offenses  extraditable  under  this  convention.  But  if  the  demand 
for  surrender,  w-ith  the  formal  proofs  hereinbefore  mentioned,  be 
not  made  as  aforesaid  by  the  diplomatic  agent  of  the  demanding 
government,  or,  in  his  absence,  by  the  competent  consular  officer, 
within  forty  days  from  the  date  of  the  commitment  of  the  fugitive, 
the  prisoner  shall  be  discharged  from  custody."  Treaty  t)etween 
United  States  and  Belgium,  Oct.  26,  1901,  art.  VII. 


§  62)  DIPLOMATIC   FUNCTIONS.  177 

information  of  a  character  to  be  of  service  to  his  government 
as  he  may  obtain. 

Nationals  of  the  state  of  the  diplomatic  representative  who 
are  sojourning  in  the  state  to  which  he  is  accredited  are  enti- 
tled to  his  protection  to  such  extent  as  may  be  prescribed  in 
the  municipal  law  of  his  state.  The  questions  arising  in  conse- 
quence of  this  duty  of  protection  of  nationals  are  most  diverse 
and  form  a  considerable  bulk  of  diplomatic  business.  The 
United  States  diplomatic  representatives  always  have  many 
complications  in  consequence  of  the  return  to  their  native  states 
of  persons  who  have  declared  their  intention  of  becoming  or 
who  have  become  United  States  citizens.  The  celebrated  case 
of  Martin  Koszta  in  1853  shows  the  claims  made  for  a  man  who 
had  declared  his  intention  to  become  a  citizen.^*  In  the  case 
of  Predicaris,  an  American  citizen  was  seized  by  bandits  under 
Raisuli  in  Morocco  in  1904.  The  United  States  sent  a  fleet  to 
Tangier,  and  stated  that  the  government  "wants  Predicaris 
alive  or  Raisuli  dead."^^  Many  cases  have  also  arisen  in  conse- 
quence of  the  return  to  their  native  state  of  naturalized  citizens 
who  have  failed  to  perform  military  service. 

Numerous  other  duties,  such  as  the  conduct  of  the  internal 
business  of  the  mission,  the  issue  and  vise  of  passports,  the  ex- 
tension of  reasonable  courtesies  to  his  countrymen,  the  fulfill- 
ment of  his  social  obligations  in  the  state  to  which  he  is  accred- 
ited, and  the  like,  fall  upon  the  permanent  diplomatic  represent- 
ative. 

The  functions  of  the  diplomat  on  a  temporary  mission  are 
usually  specific,  and  limited  to  the  powers  given  in  his  letter  of 
credence. 

The  functions  of  a  diplomatic  representative  have  become 
such  as  to  make  it  necessary  that  he  should  have  large  contact 
with  his  fellow  diplomats  and  other  leading  men.  This  involves 
certain  expenditures  commensurate  with  his  position.  Some 
states  provide  with  reasonable  liberality  for  such  purposes,  by 
furnishing  official  residences  and  necessary  equipment.  Other 
states  furnish  no  residences  and  only  small  salaries,  which  make 
it  impossible  for  other  than  men  of  large  means  to  accept  a  dip- 

343  Moore,  §§  490-491. 

85  Foreign  Relations  U.  S.,  1904,  p.  503. 

WiLS.lNT.L.— 12 


178  DIPLOMATIC   RELATIONS.  (Ch.  5 

lomatic  post.  President  Cleveland,  in  his  message  of  December 
2,  1895,  said  of  the  practice  of  the  United  States:  "I  am  thor- 
oughly convinced  that,  in  addition  to  their  salaries,  our  ambas- 
sadors and  ministers  at  foreign  courts  should  be  provided  by 
the  government  with  official  residences.  The  salaries  of  these 
officers  are  comparatively  small,  and  in  most  cases  insufficient 
to  pay,  with  other  necessary  expenses,  the  cost  of  maintaining 
household  establishments  in  keeping  with  their  important  and 
delicate  functions.  The  usefulness  of  a  nation's  diplomatic  rep- 
resentative undeniably  depends  much  upon  the  appropriateness 
of  his  surroundings,  and  a  country  like  ours,  while  avoiding 
unnecessary  glitter  and  show,  should  be  certain  that  it  does  not 
suffer  in  its  relations  with  foreign  nations  through  parsimony 
and  shabbiness  in  its  diplomatic  outfit.  These  considerations 
and  the  other  advantages  of  having  fixed  and  somewhat  per- 
manent locations  for  our  embassies,  would  abundantly  justify 
the  moderate  expenditure  necessary  to  carry  out  this  sugges- 
tion." 8« 

TERMINATION  OF  A  DIPLOMATIC  MISSION. 

63.    The   mission  of   a  diplomatic  representative   may  be  ter- 
minated: 

(a)  By   recall. 

(b)  By   vaar   or   tlie    interruption  of    amicable    relations    be- 

tTPeen    tbe    states. 

(c)  By  a  cbange  of  government  in  tlie  accrediting  state. 

(d)  By  expiration  of  letter  of  credence. 

(e)  By  completion  of  the  specific  duty  for  xrhich  letters  of 

credence  were   issued. 

(f)  By  personal  departure  of  the  agent  for  cause  stated. 

(g)  By   change   of   grade, 
(h)    By   death    of    the   agent. 

(i)    By  dismissal  by  the  accrediting  government, 
(j)    Perhaps  by  the  death  or  change  of  the  sovereign  in  a  mo- 
narchical state. 

(a)  As  the  accrediting  state  has  jurisdiction  over  its  diplo- 
matic representatives,  it  may  recall  the  diplomat  at  pleasure. 
The  procedure  in  recall  is  ordinarily  similar  to  that  of  recep- 
tion;   i.  e.,  the  diplomat,  if  of  grade  above  charge  d'affaires, 

86  Id..  ]SO.j.  XXXVII. 


8  63)  TERMINATION    OF   A   DIPLOMATIC    MISSION,  179 

is  received  in  solemn  audience  by  the  head  of  the  state,  or  if  a 
charge  d'affaires,  by  the  Minister  of  Foreign  Affairs.  Recall, 
in  the  ordinary  course  of  events,  is  merely  a  routine  matter  in 
the  succession  of  officials.  In  time  of  strained  relations,  it  may 
indicate  the  breaking  of  diplomatic  intercourse.  Sometimes  re- 
call is  because  of  conduct  displeasing  either  to  the  sending  or 
receiving  state,  which  would  render  the  services  of  the  diplo- 
mat less  useful. ^^ 

(b)  War  breaks  off  friendly  relations  between  the  belligerent 
states,  and  thereby  terminates  diplomatic  relations.  Necessary 
negotiations  are  under  such  circumstances  usually  intrusted  to 
the  diplomatic  representatives  of  third  states  friendly  to  both 
belligerents. 

(c)  A  complete  change  of  government  in  a  state  which  has 
sent  out  diplomatic  representatives,  as  from  a  monarchy  to  a  re- 
public, often  results  in  a  change  of  diplomatic  agents,  on  the 
ground  that  these  representatives  are  probably  not  in  sympathy 
with  the  new  government.  A  simple  change  of  parties  in  con- 
trol of  the  administration  formerly  brought  about  extensive 
changes  in  the  diplomatic  service  in  the  United  States. 

(d)  Letters  of  credence  to  permanent  ambassadors  are  now 
usually  given  without  time  limit ;  but  when  there  is  time  speci- 
fied the  mission  terminates  at  that  time. 

(e)  The  mission  of  diplomatic  representatives  appointed  for 
special  purposes  usually  terminates  with  the  performance  of  the 
functions  with  which  they  were  intrusted. 

(f)  Sometimes  a  mission  is  terminated  by  the  diplomatic  rep- 
resentative through  request  for  his  passports  because  of  per- 
sonal reasons.  Such  action  does  not  break  off  diplomatic  rela- 
tions. 

(g)  When  the  grade  of  a  diplomatic  agent  in  a  state  is 
changed,  he  presents  his  letter  of  recall  in  his  original  capacity, 
which  terminates  that  mission,  though  he  may  at  the  same  time 
present  his  letter  of  credence  in  his  new  capacity. 

(h)  The  death  of  a  diplomat  terminates  the  mission.  The 
property,  archives,  etc.,  are  usually  placed  in  the  custody  of  a 
secretary,  or  in  his  absence  are  taken  in  charge  by  representa- 
tives of  friendly  states.     The  dignity  of  his  office  is  respected 

3T  4  Moore,  §  639. 


]  80  DIPLOMATIC   RELATIONS.  (Ch.  5 

in  the  honors  paid  to  the  deceased  diplomat,  and  the  fullest  im- 
munities possible  are  extended  to  his  suite.  A  time  limit  may, 
if  expedient,  be  fixed  for  the  departure  of  his  suite. 

(i)  The  state  to  which  a  diplomatic  agent  is  accredited  may 
dismiss  him  as  an  evidence  of  displeasure  with  his  conduct,^** 
or  because  of  strained  relations  with  his  state.  In  case  of  dis- 
missal for  personal  misconduct,  another  ambassador  may  be  re- 
ceived. In  case  of  dismissal  on  the  ground  of  strained  rela- 
tions, the  suspension  may  continue  till  normal  relations  are  re- 
stored. 

(j)  Sometimes  the  death  or  change  of  the  head  of  a  state, 
where  sovereignty  is  personal  in  nature,  terminates  the  mission 
of  all  diplomats  accredited  to  or  by  him,  and  new  letters  of 
credence  must  issue.  So  far  as  there  is  no  change  in  the  diplo- 
matic personnel,  the  former  order  of  seniority  prevails,  and  the 
new  letters  of  credence  are  regarded  as  in  continuation  of 
the  old. 

38  In  1895  Venezuela  dismissed  tlje  Belgian  and  French  ministers, 
at  the  same  time  asserting  "that  the  dismissal  of  the  Belgian  and 
French  ministers  was  a  purely  personal  act,  due  alone  to  the  circum- 
stance that  those  individuals  had  joined  with  certain  other  foreign 
representatives  not  now  accredited  to  Venezuela  in  signing  a  certain 
protocol  of  conference  containing  gratuitous  and  defamatory  state- 
ments reflecting  upon  the  honor  of  the  state  and  the  integrity  of 
its  executive,  which  protocol  was  subsequently  made  public  by  the 
Italian  government  in  the  annual  Green  Book ;  that  by  so  doing,  of 
their  own  initiative  and  not  in  compliance  with  instructions  from 
the  friendly  governments  they  represented,  each  of  those  gentlemen 
had  rendered  himself  individually  to  the  government  of  Venezuela 
persona  non  grata ;  and  that  in  acting  upon  the  situation  so  created, 
and  in  accordance  with  the  usual  course  of  independent  states  in 
such  contingencies,  Venezuela  intended  no  affront  to  France  or  Bel- 
gium, whose  flags  she  had  conspicuously  saluted  on  the  same  dtiy 
that  she  dismissed  their  personally  objectionable  agents,  but  rather 
invited  the  continuance  of  the  hitherto  unbroken  friendly  relations 
through  new  agents,  who  should  more  fittingly  reflect  what  she  is 
happy  to  believe  are  the  true  sentiments  of  friendship  which  those 
governments  feel  for  Venezuela."  Foreign  Relations  U.  S.,  18U5, 
p.  41. 


§  64)  CONSULAR  AND   OTHER  RELATIONS.  181 


CHAPTER  VI. 

CONSULAR  AND  OTHER  RELATIONS. 

64.  Consuls. 

65.  Functions  of  Consular  Officers. 

66.  Appointment  and  Reception  of  Consuls. 

67.  Termination  of  Consular  Office. 

68.  Immunities  and  Privileges  of  Consular  Officers, 

69.  Other  State  Agents. 

CONSULS. 

64.  A  consul  is  au  official  appointed  by  a  state  mainly  for  the 
purpose  of  protecting  and  advancing  its  business,  com- 
merce, and  navigation  in  a  foreign  state,  in  wMcb  be 
is  officially  permitted  to  exercise  bis  functions. 

Functions  somewhat  similar  to  those  of  consuls  of  modern 
times  seem  to  have  been  exercised  in  very  early  days.  There 
were  commercial  magistrates,  who  like  the  Roman  praetores 
mercatorum,  settled  disputes  of  sailors  on  board  vessels.  The 
spread  of  commerce  and  the  settlement  in  a  particular  quarter 
of  a  city  of  a  number  of  foreigners  engaged  in  trade  made  nec- 
essary some  degree  of  protection  of  their  interests.  Sometimes 
officials  whose  functions  corresponded  somewhat  closely  to 
those  of  consuls  were  appointed  by  a  ruler  to  care  for  the 
rights  of  his  citizens  abroad.  Sometimes  the  consuls  seem  to 
have  been  chosen  by  the  merchants  themselves  to  look  out  for 
their  interests.  With  the  rise  of  permanent  diplomatic  mis- 
sions and  their  development  in  the  sixteenth  and  seventeenth 
centuries,  the  political  and  some  of  the  other  functions  formerly 
performed  by  consuls  passed  to  the  ambassadors.^  With  the 
revival  and  extension  of  general  commercial  relations  and  the 
greater  intercourse  following  improved  means  of  communica- 
tion since  the  end  of  the  eighteenth  century,  the  consular  of- 
fice has  again  increased  in  importance.^ 

1  Nys,  Les  Origines  du  droit  international,  p.  286. 

2  For  full  treatment  of  United  States  system  and  practice,  see 
"The  Consular  Service  of  the  United  States,"  Chester  Lloyd  Jones. 
See,  also,  "Le  Consul,"  Ellery  C.  Stowell,  1909. 


182  CONSULAR  AND   OTHER   RELATIONS.  (Ch.  6 

The  foreigners  in  a  city  seem  sometimes  to  have  purchased 
the  right  to  the  benefit  of  their  own  laws,  or  of  laws  which  they 
were  willing  to  acknowledge.  Very  often  states  made  treaties 
by  which  special  laws  should  be  applicable  to  the  foreign  trad- 
ers. From  the  time  of  the  Crusades  examples  of  the  exercise 
of  consular  jurisdiction  are  common.  The  foreign  quarters  of 
commercial  towns  were  quite  generally  under  foreign  officers. 
In  the  commercial  towns  of  Italy  during  the  Middle  Ages  the 
consular  institutions  developed  rapidly.  In  the  Mohammedan 
countries  the  consuls  by  capitulations  of  the  sovereigns  came 
to  have  complete  jurisdiction  of  the  persons  and  interests  of 
those  of  their  own  nationality.  For  a  time  the  consuls  had  sim- 
ilar jurisdiction  in  some  of  the  European  states.  In  the  Asiatic 
states  the  jurisdiction  has  tended  to  remain  very  wide,  while  in 
other  states  the  tendency  was  to  reduce  it  to  the  field  of  busi- 
ness and  commercial  interests. 

The  United  States  has  appointed  consuls  since  1780,  though 
its  agents  abroad  discharged  consular  functions  prior  to  tb.at 
date.  The  service  was  formally  established  by  an  act  of  April 
14,  1792.=* 

SAMB-FUNCTIONS   OF   CONSULAR   OFFICERS. 

€5.  While  the  general  functions  of  consuls  are  to  uratcli  over 
the  commercial  and  business  interests  of  the  country 
■which  they  serve,  they  are  charged  Trith  many  other 
duties,  particularly  in  some  non-Christian  states. 

The  duties  of  consuls  may  be  prescribed  by  municipal  law  or 
by  treaty.  The  consul  usually  has  large  supervision  over  the 
maritime  commerce  of  his  state  which  may  enter  his  jurisdic- 
tion. According  to  the  law  of  some  states,  he  receives  the 
ship's  papers  on  entrance  to  port.  He  may  take  depositions  on 
board  the  ship,  draw  up,  attest,  certify,  or  authenticate  acts, 
adjust  differences  arising  on  board  between  captain,  officers, 
and  crew,  cause  the  arrest  of  deserters,  adjust  claims  for  dam- 
ages, care  for  shipwrecked  seamen,  take  charge  of  the  wrecked 
vessel,  authenticate  the  bill  of  sale  of  a  vessel,  etc. 

By  reports  he  is  supposed  to  keep  his  state  informed  of  the 

a  1  Stat.  254. 


§  65)  CONSULS.  183 

business  and  other  conditions  of  which  it  would  be  serviceable 
for  his  state  to  be  informed. 

The  range  of  consular  reports  is  very  comprehensive,  and  if 
desired  information  cannot  be  had  from  the  reports  it  is  often 
possible  to  obtain  information  from  a  special  investigation,  if 
application  is  made  through  the  proper  channel.  A  consul  may 
be,  and  usually  is,  intrusted  with  many  duties  in  the  way  of  car-' 
ing  for  and  protecting  the  nationals  of  the  state  he  is  serving. 
He  may  aid  in  securing  proper  treatment  by  the  courts,  attest 
legal  documents,  examine  witnesses,  vise  passports,  care  for 
the  property  and  person  of  deceased  nationals,  etc. 

In  certain  states  not  members  of  the  family  of  nations  the 
jurisdiction  over  nationals  of  states  members  of  this  family  is 
intrusted  to  the  consuls.  This  is  exceptional  jurisdiction,  and 
will  tend  to  disappear.*  The  jurisdiction  varies  somewhat 
under  different  treaties.  It  may  go  so  far  as  to  cover  all  cases 
to  which  a  consul's  nationals  are  parties, °  may  cover  merely 
cases  where  a  national  is  the  defendant  (here  the  consul  or  a 
representative  may  be  present),  may  cover  cases  between  na- 
tionals of  the  same  or  different  foreign  states ;  ^  and  may  pro- 
vide for  mixed  courts,  as  in  Egypt  since  1876,  or  make  other 
provisions.'^ 

The  treaty  between  the  United  States  and  the  Ottoman  Em- 
pire of  May  7,  1830,  is  an  example  of  a  treaty  granting  special 
consular  jurisdiction: 

4  United  States  consular  courts  in  Japan  were  discontinued  July 
17,  1S99,  in  accord  witli  ttie  treaty  of  November  22,  1894. 

5  "His  Higliness,  tlie  Sultan  of  Borneo,  agrees  tliat  in  all  cases 
where  a  citizen  of  the  United  States  shall  be  accused  of  any  crime 
committed  in  any  part  of  His  Highness'  dominions  the  person  so 
accused  shall  be  exclusively  tried  and  adjudged  by  the  American 
consul,  or  other  officer  duly  appointed  for  that  purpose,  and  in  ail 
eases  where  disputes  or  differences  may  arise  between  American 
K^itizens,  or  bet^-een  American  citizens  and  the  subjects  of  His  High- 
ness, or  between  American  citizens  and  the  citizens  of  subjects  of 
any  other  foreign  power,  in  the  dominions  of  the  Sultan  of  Borneo, 
the  American  consul  or  other  duly  appointed  officer  shall  have  power 
to  hear  and  decide  the  same  without  any  interference,  molestation 
or  hindrance,  on  the  part  of  any  authority  of  Borneo,  either  before, 
during  or  after  the  litigation."    Treaty  of  June  23,  1S50,  art.  9. 

6  United  States  Treaty  with  Persia,  Dec.  13,  1856,  art.  5. 

7  A  special  court  for  China  was  created  by  Act  Cong.  June  30, 
1906  (U.  S.  Comp.  St.  Supp.  1909,  p.  1045). 


18i  CONSULAU   AND   OTHnil    RELATIONS.  (Cll.  6 

"Article  IV.  If  litij^ations  and  disputes  should  arise,  between 
subjects  of  the  Sublime  Porte  and  citizens  of  the  United 
States,  the  parties  shall  not  be  heard,  nor  shall  judgement  be 
pronounced  unless  the  American  drag;oman  be  present.  Causes, 
in  which  the  sum  may  exceed  five  hundred  piastres,  shall  be 
submitted  to  the  Sublime  Porte,  to  be  decided  according  to  the 
laws  of  equity  and  justice.  Citizens  of  the  United  States  of 
America,  quietly  pursuing"  their  commerce,  and  not  being 
charged  or  convicted  of  any  crime  or  offense,  shall  not  be  mo- 
lested ;  and  even  when  they  may  have  committed  some  offense, 
they  shall  not  be  arrested  and  put  in  prison,  by  the  local  au- 
thorities, but  they  shall  be  tried  by  their  minister  or  consul,  and 
punished  according  to  their  offense,  folio  ,ving  in  this  respect 
the  usage  observed  towards  other  Franks." 

The  international  court  established  in  Eg>'pt  in  187G  took 
over  some  of  the  jurisdiction  formerly  exercised  by  the  con- 
sular courts  and  remedied  some  of  the  evils  in  that  form  of 
jurisdiction.  Mixed  criminal  cases,  cases  between  citizens  of 
different  nations,  still  remain  largely  under  the  consular  juris- 
diction. The  international  tribunal  may  exercise  "simple  po- 
lice" jurisdiction.  ISlixed  civil  causes  were  assigned  for  the 
most  part  to  the  international  court.  Three  courts  of  the  first 
instance,  each  consisting  of  four  foreign  and  three  native 
judges,  and  one  court  of  appeal,  consisting  of  seven  foreign 
and  four  native  judges,  constituted  the  international  courts.^ 

APPOINTMENT  AND  RECEPTION  OF  CONSUI^S. 

66.  Consuls  general  and  consuls  are  usually  appointed  by  a 
commission  or  patent  from  tlie  liead  of  the  state,  "nrliicli 
is  communicated  to  tiie  government  wliere  he  is  to  reside. 

Vice  and  deputy  consuls  general  and  consuls  are  usually 
commissioned  by  the  foreign  secretary  on  recommenda- 
tion of  their  chief. 

Consular  agents  are  similarly  commissioned. 

The  authorization  by  -which  a  consul  is  admitted  to  the 
performance  of  his  functions  by  the  foreign  state  is 
termed  an  "exequatur." 

A  consular  officer  may  be  a  citizen  of  the  appointing  state, 
or  a  citizen  of  receiving  state,  or  of  some  other  foreign  state, 
though  some  states  decline  to  receive  their  own  citizens  as  con- 

8  6G  British  and  Foreign  State  Papers,  593. 


§  66)  APPOINTMENT   AND   RECEPTION    OF    CONSULS.  185 

sular  representatives,  and  other  states  decline  to  accredit  for- 
eigners. It  is  the  policy  of  the  United  States  not  to  appoint 
foreigners  or  naturalized  citizens  to  consular  offices. 

The  grades  of  consular  officers  vary  in  different  states.  In 
the  United  States  there  are  consuls  general  at  large,^  consuls 
general,  consuls,  vice  and  deputy  consuls  general,  vice  and  dep- 
uty consuls,  commercial  agents,  vice  commercial  agents,  con- 
sular agents,  consular  clerks,  interpreters,  marshals,  and 
clerks.^**  The  vice  consular  officers  are  "substitute  consular  of- 
ficers," and  the  deputy  consular  officers  are  "subordinate  con- 
sular officers."  ^^ 

The  commission  or  patent  of  the  consuls  general  and  consuls 
are  usually  from  the  head  of  the  state, ^"  while  the  vice  consuls 
and  consular  agents  are  commissioned  by  the  minister  of  for- 
eign affairs  in  most  states.  China,  however,  empowers  her  for- 
eign minister  in  a  state  to  commission  consular  officers. 

The  exequatur  by  which  a  consular  officer  is  authorized  by 
the  foreign  state  to  perform  his  functions  may  or  may  not  be 
formal,  but  in  the  United  States  is  usually  formal.^^     Some- 

8  Office  created  by  Act  April  5,  1906  (U.  S.  Comp.  St.  Supp.  190U, 
p    406). 

10  Consular  Regulations,  1896,  1. 

11  Rev.  St.  §  1674  (U.  S.  Comp.  St.  1001,  p.  1149). 

12  Commercial  agents,  a  grade  peculiar  to  the  United  States,  re- 
ceive commission  from  the  President.  Rev.  St.  §  1674  (U.  S.  Comp. 
St.  1901,  p.  1149).    This  grade  is  not  usually  recognized  in  treaties. 

13  Form  of  "Full  Presidential  Exequatur" : 

" ,  President  of  the  United  States  of  America. 

"To  All  to  Whom  It  may  Concern: 

"Satisfactory  evidence  having  been  exhibited   to  me  that   

has  been  appointed ,  I  do  hereby  recognize  him  as  such,  and 

declare  him  free  to  exercise  and  enjoy  such  functions,  powers,  and 
privileges  as  are  allowed  to  

[Seal  of  "In  testimony  whereof,  I  have  caused  these  letters  to 

the  be  made  patent,  and  the  seal  of  the  United  States  to  be 

United  hereunto  affixed. 

States.]  "Given  under  my  hand  at  the  city  of  Washington  the 

day  of ,  A.  D.  19. .,  and  of  the  Independence 

of  the  United  States  of  America  the 

"Ry  the  President,  


"Secretary  of  State." 


18G  coNSULAU  AND  OTHHii  ui:latioxs.  (Ch.  6 

times  it  may  take  the  form  of  an  official  notification  of  his 
recognition  as  consul,  or  an  indorsement  upon  the  consul's 
commission.  Consuls  general,  on  entering  upon  their  office, 
notify  the  foreign  office  and  the  diplomatic  representative,  and 
consuls  notify  the  foreign  office  and  consul  general. 

By  an  executive  order  of  June  27,  1906,  the  consular  service 
of  the  United  States  was  placed  under  the  civil  service  act  of 
1883.  New  appointments  were  to  be  made  from  among  candi- 
dates who  had  passed  a  satisfactory  examination.  "The  scope 
and  method  of  the  examinations  shall  be  determined  by  the 
board  of  examiners,  but  among  the  subjects  shall  be  included 
at  least  one  modern  language  other  than  English ;  the  natural, 
industrial  and  commercial  resources  and  the  commerce  of  the 
United  States,  especially  with  reference  to  the  possibilities  of 
increasing  and  extending  the  trade  of  the  United  States  with 
foreign  countries ;  political  economy ;  elements  of  interna- 
tional, commercial  and  maritime  law."  The  age  limit  is  be- 
tween twenty-one  and  fifty. 

"In  designations  for  appointment  subject  to  examination, 
and  in  appointments  after  examination,  due  regard  will  be 
had  to  the  rule  that,  as  between  candidates  of  equal  merit, 
appointments  should  be  so  made  as  to  secure  proportional  rep- 
resentation of  all  the  states  and  territories  in  the  consular 
service ;  and  neither  in  the  designation  for  examination  or 
certification  or  appointment  will  the  political  affiliations  of  the 
candidate  be  considered." 


TERMINATION    OF    CONSULAR    OFFICE. 

67.    The  service  of  a  consul  may  be  terminated: 

(a)  By  recall. 

(b)  By  expiration  of  period  of  appointment. 

(c)  By    deatb. 

(d)  By  witbdraival  of  exequatur. 

(a)  Recall  of  a  consular  officer  is  a  matter  wholly  within  the 
jurisdiction  of  the  sending  state.  The  receiving  state  is  not 
particularly  concerned,  as  the  service  which  he  renders  is  par- 
ticularly as  to  business  affairs,  rather  than  relating  to  matters 
of  state. 


§  68)  IMMUNITIES,  ETC.,  OF    CONSULAR   OFFICERS.  187 

(b)  Certain  states  appoint  consular  officers  for  specific  pe- 
riods, at  the  expiration  of  which  they  are  promoted,  discharged, 
or  otherwise  changed  in  place. 

(c)  The  death  of  a  consular  officer  places  the  office  in  the 
hands  of  a  subordinate,  or,  in  absence  of  such  officer,  consuls 
of  friendly  states  take  custody. 

(d)  The  withdrawal  or  revocation  of  the  exequatur  termi- 
nates the  service  of  the  consular  officer,  and  is  an  act  of  which 
the  state  which  granted  it  is  the  sole  judge.  It  may,  without 
offense  to  the  sending  state,  be  for  any  cause  which  the  state 
issuing  the  exequatur  may  think  sufficient.^*  Usuallv  a  case  is 
not  so  urgent  that  it  is  necessary  to  do  more  than  suggest  that 
the  consul  be  recalled.  Strained  relations  do  not  necessarily 
affect  the  exercise  of  consular  functions. 


IMMUNITIES  AND  PRIVILEGES  OF  CONSULAR  OFFICERS. 

68.  Consular  officers,  ivho  are  citizens  or  subjects  of  the  state 
appointing  them,  are  usually  accorded  such  immunities 
and  privileges  as  are  necessary  for  the  convenient  per- 
formance of  their  functions.  These  immunities  and 
privileges  usually  are: 

(a)  Inviolability  of  office  and  archives. 

(b)  Immunity  frozn  military  service  or  burdens. 

(c)  Exemption   from   arrest   except  on  criminal  charge. 

(d)  Exemption  from  taxation  if  solely  engaged  in   consular 

business. 

(e)  Exemption  from  Tvitness  duty,  though  testimony  may  be 

taken  at  the  consulate,  or  the  consul  may  be  instructed 
to  appear  by  his  home  government. 

14  Treaty  between  the  United  States  and  Spain,  July  3,  1902: 
"Article  XIV.  Consular  officers  shall  receive,  after  presenting  their 
commissions,  and  according  to  the  formalities  established  in  the  re- 
spective countries,  the  exequator  required  for  the  exercise  of  their 
functions,  which  shall  be  furnished  to  them  free  of  cost;  and  on 
presentation  of  this  document,  they  shall  be  admitted  to  the  en- 
joyment of  tne  rights,  privileges  and  immunities  granted  to  them  by 
this  treaty. 

"The  government  gi'anting  the  exequatur  shall  be  at  liberty  to 
withdraw  the  same  on  stating  the  reasons  for  which  it  has  thought 
proper  so  to  do.  Notice  shall  be  given,  on  producing  the  commission, 
of  the  extent  of  the  district  allotted  to  the  consular  officer,  and  sub- 
sequently of  the  changes  that  may  be  made  in  this  district." 


188  CONSULAR   AND    OTHER    RELATIONS.  (Ch.  6 

(f)  Privilege   of   placing   tlie   arms   of   their   state   above    tlie 

outer  door,  and  of  flying  the  national  flag  above  the 
consulate,  or  above  a  vessel  Trhen  engaged  in  discharge 
of  official  port  duties. 

(g)  In   some  of  the  Eastern  states  special  privileges  similar 

to  those  accorded  to  diplomatic  representatives. 

Any  one  accredited  as  consul,  whether  or  not  a  citizen  of 
the  receiving-  state,  when  once  given  an  exequatur,  would  be 
entitled  to  inviolabilty  of  office  and  archives,  and  to  such  other 
immunity  as  attaches  to  the  office,  as  the  privileg-e  of  use  of 
the  arms  above  the  door.  If  the  consul  is  a  citizen  of,  or  a 
domiciled  alien  in,  the  receiving  state,  his  immunities  and 
privileges  are  usually  strictly  limited.  If  an  alien  engages  in 
other  business  while  holding  a  consular  office,  he  is  liable  to 
the  local  laws  to  the  extent  which  his  business  brings  him  un- 
der their  provisions.  So  long  as  he  is  allowed  an  exequatur, 
he  is  entitled  to  perform  his  consular  functions;  but  he  does 
not  have  special  privileges  for  other  purposes. 

In  time  of  war  the  consular  flag  specially  protects  the  con- 
sulate. In  some  states  the  consulate  has  at  times  been  used  as 
an  asylum  for  political  and  other  refugees.  The  United  States 
has  discountenanced  the  use  of  the  residences  of  its  diplomatic 
representatives  for  such  purpose,  and  the  use  of  a  consulate 
for  such  purpose  would  be  still  more  open  to  objection. ^^ 

The  immunities  of  consular  officers  are  quite  fully  set  forth 
in  the  Treaty  between  the  United  States  and  Spain  of  July  3, 
1902: 

"Article  XV.  All  consular  officers,  citizens  or  subjects  of  the 
country  which  has  appointed  them,  shall  be  exempted  from 
military  billetings  and  contributions,  and  shall  enjoy  personal 
immunity  from  arrest  or  imprisonment  except  for  acts  consti- 
tuting crimes  or  misdemeanors  by  the  laws  of  the  country  to 
which  they  are  commissioned.  They  shall  also  be  exempt  from 
all  national,  state,  provincial  and  municipal  taxes  except  on 
real  estate  situated  in,  or  capital  invested  in,  the  country  to 
which  they  are  commissioned.  If,  however,  they  are  engaged 
in  professional  business,  trade,  manufacture  or  commerce,  they 
shall  not  enjoy  such  exemption  from  taxes,  but  shall  be  subject 

15  Foreign  Relations  U.  S.,  1899,  p.  256, 


§  68)  IMMUNITIES,  ETC. ,  OF   CONSULAR   OFFICERS.  189 

to  the  same  taxes  as  are  paid  under  similar  circumstances  by 
foreigners  of  the  most  favored  nation,  and  shall  not  be  entitled 
to  plead  their  consular  privilege  to  avoid  professional  or  com- 
mercial liabilities. 

"Article  XVI.  If  the  testimony  of  a  consular  officer,  who  is 
a  citizen  or  subject  of  the  state  by  which  he  was  appointed, 
and  who  is  not  engaged  in  business,  is  needed  before  the  courts 
of  either  country,  he  shall  be  invited  in  writing  to  appear  in 
court,  and  if  unable  to  do  so,  his  testimony  shall  be  requested 
in  writing,  or  be  taken  orally  at  his  dwelling  or  office. 

"To  obtain  the  testimony  of  such  consular  offxer  before  the 
courts  of  the  country  where  he  may  exercise  his  functions,  the 
interested  party  in  civil  cases,  or  the  accused  in  criminal  cases, 
shall  apply  to  the  competent  judge,  who  shall  invite  the  con- 
sular officer  in  the  manner  prescribed  above,  to  give  his  testi- 
mony. 

"It  shall  be  the  duty  of  said  consular  officer  to  comply  with 
this  request,  without  any  delay  which  can  be  avoided.  Nothing 
in  the  foregoing  part  of  this  article,  however,  shall  be  construed 
to  conflict  with  the  provisions  of  the  sixth  article  of  the  amend- 
ments to  the  Constitution  of  the  United  States,  or  with  like 
provisions  in  the  Constitutions  of  the  several  states,  whereby 
the  right  is  secured  to  persons  charged  with  crimes,  to  obtain 
witnesses  in  their  favor,  and  to  be  confronted  with  the  wit- 
nesses against  them. 

"Article  XVII.  Consuls  general,  consuls,  vice  consuls,  and 
consular  agents  may  place  over  the  outer  door  of  their  office 
the  arms  of  their  nation  with  this  inscription  'Consulate,'  'Vice 
Consulate,'  or  'Consular  Agency  of  the  United  States,'  or 
'Spain.' 

"They  may  also  hoist  the  flag  of  their  country  over  the 
house  in  which  the  consular  office  is,  provided  they  do  not  re- 
side in  the  capital  in  which  the  legation  of  their  country  is 
established,  and  also  upon  any  vessel  employed  by  them  in 
port  in  the  discharge  of  their  official  duties. 

"The  consular  offices  and  archives  shall  be  at  all  times  in- 
violable. The  local  authorities  shall  not  be  allowed  to  enter 
such  offices  under  any  pretext,  nor  shall  they  in  any  case^  ex- 
.amine  or  take  possession  of  the  official  papers  therein  deposited. 
These  offices,  however,  shall  never  serve  as  place  of  asylum. 


190  CONSULAR   AND   OTHER   RELATIONS.  (Ch.  6 

"When  the  consular  ofificer  is  engaged  in  trade,  professional 
business  or  manufacture,  the  papers  and  archives  relating  to 
the  business  of  the  consulate  must  be  kept  separate  and  apart 
from  all  others." 

OTHER  STATE  AGENTS. 

G9.  There  may  be  agents  of  a  state  Tirho  have  no  acknoivledged 
diplomatic  or  consular  character  such  as  secret  agents, 
special  commissioners,  bearers  of  dispatches,  etc. 

It  may  be  that  under  special  circumstances  a  state  may  desire 
to  send,  and  another  state  may  desire  to  receive,  an  agent  whose 
status  and  business  is  not  publicly  disclosed.  So  far  as  the 
sending  and  receiving  states  are  concerned,  such  an  agent  is 
entitled  to  all  the  privileges  and  immunities  which  appertain  to 
his  office.  As  his  status  is  not  publicly  known,  he  cannot, 
without  disclosing  it,  claim  its  privileges,  and  such  a  disclosure 
would  not  accord  with  his  mission,  nor  would  he  expect  to  be 
accorded  privileges  by  third  powers. 

Agents  are  also  sometimes  sent  to  ascertain  the  condition  of 
affairs  in  a  territory  where  insurrection  prevails,  and  in  a  more 
public  manner  to  a  recognized  belligerent. 

Commissioners  are  often  sent  on  special  foreign  service, 
which  does  not  require  the  grant  of  any  diplomatic  or  consular 
privileges.  Such  commissioners  may  be  sent  for  various  serv- 
ices, as  to  fix  boundary  lines,  arrange  for  highways  of  com- 
merce between  states,  make  investigations,  etc.  They  are 
usually  accorded  such  courteous  treatment  as  will  facilitate  the 
performance  of  their  functions. 

Bearers  of  public  dispatches,  even  though  not  the  regular 
dispatch  agents  of  a  state,  would,  if  their  character  were  estab- 
lished, be  accorded  reasonable  exemptions. 

Some  other  state  agents,  such  as  spies,  and  those  engaged 
in  other  secret  service  without  the  consent,  tacit  or  direct,  of 
the  state  in  which  they  are  may  be  expelled  or  treated  in  such 
manner  as  the  authorities  of  the  state  where  they  are  found 
may  determine. 

Sometimes  such  agents,  while  secretly  in  a  foreign  state,  are 
allowed  to  remain  without  interference,  as  when  reporting  the 
movements  of  insurgent  leaders,  anarchists,  etc. 


§  TO)  TREATIES   AND   OTHER   AGREEMENTS.  191 

CHAPTER  VII. 
TREATIES  AND  OTHER   INTERNATIONAL  AGREEMENTS. 

70.  Treaty  Defined. 

71.  Other  Agreements  between  States. 

72.  Essentials  of  a  Valid  Treaty. 

73.  Form  of  tlie  Contract, 

74.  Ratification. 

75.  Interpretation. 

76.  Most  Favored  Nation  Clause. 

77.  Treaties  of  Guaranty, 

78.  Operation  of  a  Treaty 

79.  Termination. 

80.  Continuation. 

TREATY  DEFINED. 

70.   A  treaty  is  an.  agreement  betiveen  txt^o  or  more  states  in 
conformity  to  law^. 

A  treaty  is  the  most  formal  agreement  between  states,  and 
usually  relates  to  matters  of  general  concern,  as  a  treaty  of 
peace,  or  to  matters  of  high  importance,  as  cession  of  territory. 
"A  treaty  is  primarily  a  compact  between  independent  nations. 
It  depends  for  the  enforcement  of  its  provisions  on  the  inter- 
est and  the  honor  of  the  governments  which  are  parties  to 
it."  ^  Treaties  are  usually  in  writing.  Treaties  may  relate  to 
any  subject  within  the  competence  of  the  treaty-making  pow- 
er.^ The  term  "treaty"  is  also  loosely  used  as  the  general  term 
to  designate  any  form  of  international  agreement. 

Separate  articles,  or  sole  articles,  explanatory  of  a  treaty, 
may  be  agreed  upon  at  the  time  of  the  negotiation  of  the  treaty, 
or  at  a  subsequent  date,  and  are  separately  ratified. 

1  Edye  v.  Robertson,  112  U.  S.  580,  5  Sup.  Ct.  247,  28  L.  Ed.  798 ; 
The  Diamond  Rings.  183  U.  S.  182.  22  Sup.  Ct.  59,  46  L.  Ed.  138. 

2  1  Butler,  Treaty  Making  of  the  United  States,  §  3. 


192  TREATIES  AND   OTHER  AGREEMENTS.  (Ch.  7 


OTHER  AGREEMENTS  BETW^EEN  STATES. 

71.  (a)  A  convention  usually  relates  to  some  specific  subject 
ratlier  than  to  matters  of  general  character,  as  in  the 
case  of  a  treaty. 

(b)  A  protocol,  or  proces  verbal,   generally  referring  to  an 

agreement  already  made  or  to  be  made,  is  usually  less 
formal  than  a  convention,  both  in  phrasing  and  ar- 
rangement. Protocols  are  sometimes  formally  ratified 
by  the  treaty-making  po-wer,  and  sometimes  are  simply 
the  signed  minutes  of  a  conference. 

(c)  An  agreement,  an  arrangement  or  a  modus  vivendi,  usu- 

ally prescribes  in  detail  the  line  of  conduct  ■which  xpilj 
be  f  ollow^ed  in  interstate  relations  under  certain  condi- 
tions. 

(d)  Declarations  are  usually  in  the  form  of  reciprocal  agree- 

ments, relating  to  the  rights  and  privileges  of  the  na- 
tionals of  the  states.  The  term  "declaration"  is  also 
applied  to  the  formal  statement  of  the  principles  in  ac- 
cord \Fith  ivhich  states  propose  to  act,  or  to  the  formal 
statement  of  the  grounds  for  an  action. 

(e)  Cartels   are   agreements   concluded    betw^een   belligerents 

in  regard  to  intercourse  in  time  of  xsrar. 

(f)  Sponsions,    or   agreements   sub    spe    rati,   are    agreements 

made  betw^een  representatives  of  states  not  properly 
commissioned,  or  agreements  made  by  representatives 
in  excess  of  authority. 

The  terms  "treaty,"  "convention,"  "protocol,"  etc.,  are  often 
used  without  clear  distinction. 

(a)  Convention  is  the  usual  term  given  to  agreements  in 
regard  to  consular  relations,  naturalization,  extradition,  postal 
relations,  and  the  like. 

(b)  Protocols  vary  greatly,  but  generally  are  preparatory 
to  a  more  formal  agreement.  A  protocol  was  signed  by  the 
plenipotentiaries  of  the  various  powers  at  the  conclusion  of  the 
so-called  "Boxer  Troubles"  in  1900.^  A  protocol,  embodying 
the  terms  of  a  basis  for  the  establishment  of  peace  between 
the  United  States  and  Spain,  was  signed  by  the  United  States 
Secretary  of  State  and  the  French  Ambassador,  representing 
Spain,  on  August  13,  1898  and  was  preliminary  to  the  treaty 

3  Foreign  Relations  U.  S.,  1901,  Appendix,  p.  30G.  For  tlie  nego- 
tiations, signing,  etc.,  see  preceding  pages. 


§  71)  OTHER   AGREEMENTS   BETWEEN    STATES.  193 

of  peace.  The  official  minutes  of  a  conference  often  take  the 
form  of  a  protocol,  when  signed  by  the  accredited  represen- 
tatives. 

(c)  Arrangements,  agreements,  modi  vivendi,  take  many 
forms  and  relate  to  many  subjects.  An  arrangement  was  made 
between  the  United  States  and  Great  Britain  in  1817  in  regard 
to  the  naval  force  to  be  maintained  upon  the  American  bound- 
ary lakes.*     A  reciprocal  commercial  agreement  was  entered 

•  into  between  the  United  States  and  France  May  28,  1898." 
The  United  States  and  Great  Britain  have  entered  into  many 
modi  vivendi,  particularly  in  regard  to  temporary  adjustments 
of  difficulties  over  fishing  rights  on  the  adjacent  seas.® 

(d)  Declarations  frequently  confer  reciprocal  trade-mark  or 
copyright  privileges  upon  the  nationals  of  the  states  becoming 
parties  thereto.'^  The  declaration  of  Paris  of  1856  set  forth 
the  principles  which  the  states  proposed  to  follow  in  maritime 
warfare.^  A  declaration  of  war  usually  sets  forth  the  reasons 
for  entering  upon  hostilities. 

(e)  Cartels  are  agreements  between  belligerents  in  regard  to 
intercourse  in  time  of  war.    Cartels  have  been  made  relating 

4  "The  naval  force  to  be  maintained  upon  tbe  American  lalies,  by 
His  Maj^^sty  and  the  government  of  the  United  States,  shall  hence- 
forth be  confined  to  the  following  vessels  on  each  side;  that  is: 

"On  Lake  Ontario,  to  one  vessel,  not  exceeding  one  hundred  tons 
burden,  and  armed  with  one  eighteen-pound  cannon. 

"On  the  upper  lalies,  to  two  vessels,  not  exceeding  like  burden  each, 
and  armed  with  like  force. 

"On  the  waters  of  Lake  Champlain,  to  one  vessel,  not  exceeding 
like  burden,  and  armed  with  like  force. 

"All  other  armed  vessels  on  these  lakes  shall  be  forthwith  dis- 
mantled, and  no  other  vessels  of  war  shall  be  there  built  or  armed. 

"If  either  party  should  hereafter  be  desirous  of  annulling  this  stip- 
ulation, and  should  give  notice  to  that  effect  to  the  other  party,  it 
shall  cease  to  be  binding  after  the  expiration  of  six  months  from 
the  date  of  such  notice. 

"The  naval  force  so  to  be  limited  shall  he  restricted  to  such  services 
as  will,  in  no  respect,  interfere  with  the  proper  duties  of  the  armed 
vessels  of  the  other  party."     8  Stat.  p.  231. 

B30  Stat.  1774. 

« Modus  vivendi  respecting  Fisheries  on  Newfoundland  Treaty 
Coast,  Oct.  6-8,  1906. 

7  United  States  and  Russian  Agreement,  March  28,  1874. 

«  Appendix,  p.  487. 
Wils.Int.L. — 13 


194  TREATIES   AND   OTIIEU  AGREEMENTS.  (Ch.  7 

to  telegraphic,  mail,  and  lilce  services,  but  most  frequently  re- 
late to  the  exchange  of  prisoners. 

(f)  Sponsions,  or  agreements  sub  spe  rati  are  often  made 
where  new  conditions  arise  after  negotiators  are  appointed, 
which  make  it  seem  expedient  that  an  agreement  should  be 
made  which  is  beyond  their  powers,  and  that  it  should  be  en- 
tered upon  subject  to  subsequent  rejection  or  ratification  by 
their  government.  This  form  was  more  common  in  earlier 
times,  when  negotiators  could  not  so  easily  communicate  with 
their  home  governments  and  obtain  extension  of  powers. 

ESSENTIALS    OF    VALID    TREATY. 

72.    It  is  generally  recognized  that  the  essentials   of  a  valid 
treaty  or  contract  betxreen  tw^o  or  more  states  are: 

(a)  Capacity  of  the  parties  to  contract.  • 

(b)  Duly  enipoTirered  agents  to  act  on  behalf  of  the  states. 

(c)  Freedom  of  consent. 

(d)  An  object  in  conformity  to  Islmt, 

(a)  The  capacity  of  a  state  to  make  a  treaty  may  be  limited 
in  certain  respects  by  its  fundamental  law,  as  is  usually  the 
case  in  states  having  written  constitutions,  even  though  the 
limitations  are  only  implied,®  or  may  be  limited  by  the  relations 
which  a  state  sustains  to  other  states,  as  in  the  case  of  states 
whose  existence  is  under  restrictions,  such  as  neutralized 
states. 

(b)  In  every  state  certain  agents  have,  under  certain  condi- 
tions, the  power  to  bind  their  state  by  their  contracts. ^°  If, 
however,  these  agents  exceed  their  powers,  the  state  is  not 
bound.  Where  their  acts  are  not  ratified,  and  the  state  has  re- 
ceived some  material  advantage  as  a  result  of  the  agreement 

»  "The  treaty  power,  as  expressed  in  the  Constitution,  is  in  terms 
unlimited  except  by  those  restraints  which  are  found  in  that  instru- 
ment against  the  action  of  the  govei'nment  or  of  its  departments,  and 
those  arising  from  the  nature  of  the  government  and  of  that  of  the 
States."  De  Geofroy  v.  Riggs,  133  U.  S.  258,  10  Sup.  Ct.  295,  33  L. 
Ed.  642. 

10  "He  [the  President]  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate  to  make  treaties,  provided  two-thirds  of 
the  Senators  present  concur."    Const.  U.  S.,  art.  2,  §  2  (2). 


§  73)  FORM    OF   THE    CONTRACT.  195 

entered  into  by  them,  or  where  the  other  contracting  state  has 
performed  acts  in  pursuance  of  the  agreement,  it  is  the  duty  of 
the  state  receiving  the  benefits,  or  the  action  of  whose  agent 
caused  the  performance  of  the  acts  mentioned,  either  to  make 
proper  compensation  or  to  restore  the  former  status  as  far  as 
practicable.  If  the  agent  has  clearly  exceeded  his  powers  in 
such  a  manner  that  this  fact  should  have  been  known  to  the 
other  party,  there  is  no  obligation  upon  the  agent's  state. 

(c)  Many  treaties  are  made  in  order  to  bring  to  an  end  fur- 
ther use  of  force.  The  state  is,  however,  held  to  be  free  to 
continue  to  resist  or  to  agree  upon  terms.  The  use  of  force, 
if  a  proper  means  of  redress,  cannot  be  made  to  vitiate  a  con- 
tract resulting  from  its  use.  A  state  can  enter  into  a  perfectly 
valid  contract  which  has  been  forced  upon  it,  however  disad- 
vantageous its  terms  may  be,  provided  it  does  not  part  with  an 
essential  to  its  existence.  No  state  can  be  supposed  to  be  will- 
mg  to  part  with  independence  as  a  result  of  constraint,  and^ 
when  this  results,  the  contract  is  assumed  to  be  vitiated  by  the 
constraint.  In  case  constraint  be  imposed  upon  the  person  of 
the  sovereign  of  a  state  or  upon  the  person  of  a  commander, 
or  of  an  agent  authorized  to  negotiate  a  treaty,  the  state  which 
he  represents  is  in  no  manner  bound  by  his  acts,  and  all  such 
contracts  are  absolutely  void.  If  the  consent  of  an  agent  of 
a  state  is  obtained  through  fraud,  the  contract  resulting  there- 
from is  not  valid. 

(d)  A  treaty  which  does  not  conform  to  international  law 
and  established  usages  may  be  void  or  voidable,  as  a  treaty 
which  has  as  an  object  the  exercise  of  proprietary  rights  over 
the  open  sea,  or  a  treaty  contrary  to  the  recognized  rights  of 
humanity,  as  for  the  establishment  or  protection  of  the  slave 
trade. 

FORM  OF  THE   CONTRACT. 

73.  'While  no  prescrilied  form  is  necessary,  contracts  betiween 
states  are  usually  in  the  form  of  written  agreements, 
signed  by  or  in  behalf  of  the  treaty-making  power  of 
the  states  parties  to  the  contract. 

Agreements  may  even  be  made  by  the  display  of  symbols 
by  agents  of  a  state,  as  in  the  raising  of  a  white  flag  in  token 


196  TREATIES  AND  OTHER  AGREEMENTS.        (Ch.  7 

of  surrender.  Verbal  agreements  between  sovereigns  have 
been  held  as  binding  upon  states,  particularly  in  earlier  times., 
when  the  sovereign  often  had  absolute  power.  Less  formal 
agreements  are  sometimes  made  by  the  exchange  of  notes  be- 
tween agents  of  states. 

In  general,  however,  interstate  contracts  are  of  such  impor- 
tance that  they  are  entered  upon  with  much  formality.  Usually 
a  preamble,  containing  the  names  of  the  heads  of  the  states  or 
their  representatives,  is  followed  by  a  statement  of  the  reasons 
for  the  negotiation  of  the  treaty.  The  body  of  the  treaty  ordi- 
narily consists  of  numbered  articles,  setting  forth  the  agree- 
ments to  which  the  states  have  come.  The  stipulations  in  re- 
gard to  ratification,  duration,  accession  of  other  states,  denun- 
ciation, and  similar  provisions,  are  usually  followed  by  the 
signatures  and  seals  of  the  negotiators.^^ 

112  Pradier-Fodere,  Droit  Int.  Public,  §§  10S&-1096.  The  usual 
form  may  be  seen  in  the  treaty  between  the  United  States  and  Great 
Britain  to  facilitate  the  construction  of  a  ship  canal,  concluded  No- 
vember 18,  1901: 

"The  United  States  of  America  and  His  Majesty  Edward  the 
Seventh,  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  and 
of  the  British  Dominions  beyond  the  Seas,  King,  and  Emperor  of 
India,  being  desirous  to  facilitate  the  construction  of  a  ship  canal  to 
connect  the  Atlantic  and  Pacific  Oceans,  by  whatever  route  may  be 
considered  expedient,  and  to  that  end  to  remove  any  objection  which 
may  arise  out  of  the  Convention  of  the  19th  April,  1850,  commonly 
called  the  Clayton-Bulwer  Treaty,  to  the  construction  of  such  canal 
under  the  auspices  of  the  government  of  the  United  States,  without 
impairing  the  'general  principle'  of  neutralization  established  in  ar- 
ticle VIII  of  that  Convention,  have  for  that  purpose  appointed  as 
their  plenipotentiaries: 

"The  President  of  the  United  States,  John  Hay,  Secretary  of  State 
of  the  United  States  of  America ; 

"And  His  Majesty  Edward  the  Seventh,  of  the  United  Kingdom 
of  Great  Britain  and  Ireland,  and  of  the  British  Dominions  beyond 
the  Seas,  King  and  Emperor  of  India,  the  Right  Honorable  Lord 
Pauncefote,  G.  C.  B.,  G.  C.  M.  G.,  His  Majesty's  Ambassador  Ex- 
traordinary and  Plenipotentiary  to  the  United  States ; 

"Who,  having  communicated  to  each  other  their  full  powers,  which 
were  found  to  be  in  due  and  proper  form,  have  agreed  upon  the 
following  articles: 

"[Here  follows  the  body  of  the  treaty.] 

"Article  V.  The  present  treaty  shall  be  ratified  by  the  President 
of  the  United  States,  by  and  with  the  advice  and  consent  of  the  Sen- 


§  T4)  RATIFICATION.  197 

While  the  above  is  the  common  form,  treaties  vary  greatly 
in  form.  The  order  of  signing  was  in  early  times  often  a  sub- 
ject of  discussion.  At  present  the  most  common  order  is  in  ac- 
cord with  the  alphabetical  order  of  the  names  of  the  states,  and 
usually  following  the  order  in  the  French  language,  where  sev- 
eral states  are  parties  to  the  treaty.  Sometimes  the  order  is 
determined  by  lot.  In  the  draft  of  the  treaty  for  his  own  state, 
the  representative  of  that  state  may,  following  the  principle  of 
the  alternat,  sign  first. 

RATIFICATION. 

74.  Ratification  is  the  act  by  \irliich  tlie  treaty-making  pow- 
er approves  and  confirms  tliat  Tvhich  lias  been  agreed 
upon  by  its  autliorized   agent   or  agents. 

The  fundamental  law  of  a  state  in  many  states  prescribes  the 
procedure  in  making  and  ratifying  treaties.  In  monarchies  the 
ratifying  power  is  generally  in  the  monarch,  provided  the  treaty 
does  not  alienate  territory  or  change  the  status  of  nationals, ^- 
and  in  republics  in  some  representative  body. 

In  some  cases  ratification  may  not  be  necessary,  as  in  cases 
where  treaties  are  concluded  by  functionaries  having  treaty- 
making  power.  Usually,  however,  the  signing  of  a  treaty  by 
the  representatives  of  the  states  is  an  indication  that  they  have 
reached  an  agreement.  Whether  this  agreement  will  commend 
itself  to  the  states  by  which  they  are  accredited  is  to  be  deter- 
mined by  subsequent  ratification.  Many  treaties  are  now  con- 
cluded subject  to  ratification,  even  if  the  fundamental  law  of  a 
state  does  not  prescribe  this  method,  and  even  if  this  condition 
is  not  mentioned  in  the  treaty.  If  no  time  for  ratification  is 
specified,  a  reasonable  period  is  presumed  to  be  allowed.  Rat- 
ate  thereof,  and  by  His  Britannic  Majesty;  and  the  ratifications  shall 
be  exchanged  at  Washington  or  at  London  at  the  earliest  possible 
time  within  six  months  from  the  date  hereof. 

"In  faith  whereof  the  respective  plenipotentiaries  have  signed  this 
treaty  and  thereunto  affixed  their  seals. 

"Done  in  duplicate  at  Washington,  the  18th  day  of  November,  in 
the  year  of  Our  Lord  one  thousand  nine  hundred  and  one. 

"John  Hay.       [8eal.j 
"Pauncefote.     [Seal.]" 

12  Crandall,  Treaties,  Their  Making  and  Enforcement. 


198  TREATIES  AND  OTHER  AGREEMENTS.        (Ch.  7 

ification  must  be  by  the  treaty-making-  power  or  by  an  author- 
ized agent.  It  is  generally  held  that  it  must  be  complete,  for 
partial  ratification  would  in  effect  be  a  new  treaty.  The  form 
of  ratification  varies.  Sometimes  it  may  even  be  tacit,  by  ful- 
filling- the  terms  of  the  treaty;  but  it  is  more  often  formal,  by 
the  exchange  of  documents,  sometimes  reciting  the  whole 
treaty,  sometimes  reciting  merely  the  preamble,  the  names  of 
the  negotiators,  the  date  of  signing,  etc. ;  i.  e.,  the  earlier  and 
later  clauses  of  the  treaty  to  such  an  extent  as  to  make  its 
identification  certain. 

"The  exchange  of  ratifications  is  usually  a  solemn — i.  e., 
highly  formal — ceremony  by  which  parties  to  the  treaty  or 
convention  guarantee  to  each  other  the  execution  of  its  terms. 
As  many  copies  of  the  act  of  ratification  are  prepared  by  each 
state  as  there  are  state  parties  to  the  treaty.  When  the  repre- 
sentatives of  the  states  assemble  for  the  exchange  of  ratifica- 
tions, they  submit  them  to  each  other.  These  are  carefully  com- 
pared, and,  if  found  in  correct  form,  they  make  the  exchange 
and  draw  up  a  proces  verbal  of  the  fact,  making  as  many  copies 
of  the  proces  verbal  as  there  are  parties  to  the  treaty.  At  this 
time,  also,  a  date  for  putting  into  operation  the  provisions  of 
the  treaty  may  be  fixed.  Sometimes  clauses  explanatory  of 
words,  phrases,  etc.,  in  the  body  of  the  treaty,  are  agreed  upon. 
Such  action  usually  takes  the  form  of  a  special  proces  verbal, 
or  protocol."  ^^ 

While  ratification  generally  follows  the  negotiation  of  a 
treaty,  it  is  not  now  maintained,  as  was  formerly  held  by  many, 
that  ratification  is  legally  or  even  morally  obligatory.  The 
United  States  Senate  has  on  various  occasions  refused  to  ratify, 
or  ratified  an  amended  treaty,  which  was  in  effect  a  refusal  to 
ratify,  the  agreement  which  the  negotiators  had  made.^*  Rat- 
ification may  be  refused  for  sufficient  reason,  though  there  may 
be  differences  of  opinion  as  to  what  constitutes  sufficient  rea- 
son for  such  refusal. 

13  Wilson  &  Tucker,  Int.  Law  (5th  Ed.)  p.  212. 

14  This  -was  the  case  with  certain  reciprocity  treaties  at  the  end 
of  the  nineteenth  century  and  with  certain  arbitration  treaties  in 
the  early  twentieth  century.  The  Senate  also  modified  the  proposed 
treaty  with  Great  Britain  concerning  the  Nicaragua  Canal,  signed 
February  5,  1900. 


§  75)  INTERPRETATION    OF   TREATIES.  199 

"The  following  have  been  offered  at  various  times  as  valid 
reasons  for  refusal  of  ratification:  (1)  Error  in  points  essen- 
tial to  the  agreement;  (2)  the  introduction  of  matters  of  which 
the  instructions  of  the  plenipotentiaries  do  not  give  them  power 
to  treat;  (3)  clauses  contrary  to  the  public  law  of  either  of 
the  states ;  (4)  a  change  in  the  circumstances,  making  the  ful- 
fillment of  the  stipulations  unreasonable ;  (5)  the  introduction 
of  conditions  impossible  of  fulfillment;  (6)  the  failure  to  meet 
the  approval  of  the  political  authority  whose  approval  is  neces- 
sary to  give  the  treaty  effect ;  (7)  the  lack  of  proper  credentials 
on  the  part  of  the  negotiators,  or  the  lack  of  freedom  in  nego- 
tiating." ^^ 

Ratification  makes  the  treaty  binding.  While  there  is  some 
difference  of  opinion  as  to  whether  the  date  upon  which  a 
treaty  becomes  binding  is  the  date  of  ratification,  or  the  date 
of  the  signing  of  the  treaty,  the  United  States  Supreme  Court 
has  held  that  after  ratification,  as  between  the  governments,  a 
treaty  "is  considered  as  concluded  and  binding  from  the  date 
of  signature,"  while,  as  regards  persons,  it  is  binding  only  from 
the  date  of  ratification  and  proclamation.^®  The  proclamation 
or  promulgation  of  a  treaty  or  publication  of  the  contents  of  a 
treaty  may  be  delayed,  as  in  the  case  of  a  secret  treaty.  The 
treaty  is  in  such  case  binding  on  the  state,  but  not  upon  its  citi- 
zens, who  are  ignorant  of  its  provisions.  The  method  of  mak- 
ing a  treaty  known  is  a  matter  of  municipal  law. 

INTEHPRETATION  OF  TREATIES. 

75.  Treaties  should  receive  reasonable  interpretation.  In 
case  of  doubt  in  regard  to  interpretation,  tbe  follow- 
ing rules  bave  been  generally  accepted: 
(a)  Wlien  tbere  is  doubt  as  to  tbe  interpretation  of  tbe 
-words  of  a  treaty:  (1)  The  words  are  to  be  interpreted 
in  their  usual  sense,  unless  this  involves  an  absurdity 
or  is  incompatible  \7ith  the  general  provisions  of  the 
treaty;  (2)  w^ords  having  more  than  one  meaning  are 
interpreted  in  the  more  general  sense,  rather  than  the 
technical    sense,    unless    clearly    used   in    the    technical 

IB  Wilson  &  Tucker,  Int.  Law  (5th  Ed.)  211. 

16  Haver  v.  Yaker,  9  Wall.  32,  19  L.  Ed.  571.  For  full  discussion, 
see  2  Butler,  Treaty-Making  Power  of  the  United  States,  §  3S3. 


200  TREATIES    AND    OTHER    AGREEMENTS.  (Cll.  7 

sense;  (3)  Tvords  are  to  be  interpreted  as  understood  at 
tile  time  of  the  negotiation  of  the  treaty  and  favorably 
to  the  party  assuming  an  obligation. 

(b)  AVhen  there  is  doubt  as  to  the  interpretation  of  the  pro- 

visions of  a  treaty:  (1)  That  wrhich  is  specifically  stat- 
ed prevails  against  the  more  genei*al;  (2)  provisions 
operating  unequally  may  be  strictly  construed  by  the 
party  suffering  the  greater  burden:  (3)  single  provi- 
sions should  be  interpreted  writh  reference  to  the  Avhole 
treaty. 

(c)  In  case  of  conflict  betxreen  different  treaties:    (1)    If  be- 

ttveen  treaties  to  -which  the  same  states  are  parties,  the 
later  treaty  is  binding;  (2)  if  betTveen  earlier  and  later 
treaties  to  which  the  same  states  are  not  parties,  the 
earlier  treaty  is  binding. 

The  rules  of  interpretation  have  been  set  forth  at  various 
times  by  the  Supreme  Court  of  the  United  States.  In  the  case 
of  De  Geof roy  v.  Riggs,  in  1890,  the  court  said : 

"It  is  a  general  principle  of  construction  with  respect  to 
treaties  that  they  shall  be  liberally  construed,  so  as  to  carry  out 
the  apparent  intention  of  the  parties  to  secure  equality  between 
them.  As  they  are  contracts  between  independent  nations,  in 
their  construction  words  are  to  be  taken  in  their  ordinary  mean- 
ing, as  understood  in  the  public  lav/  of  nations,  and  not  in  any 
artificial  or  special  sense  impressed  upon  them  by  local  law, 
unless  such  restricted  sense  is  clearly  intended.  And  it  has 
been  held  by  this  court  that,  where  a  treaty  admits  of  two  con- 
structions, one  restrictive  of  rights  that  may  be  claimed  under 
it,  and  the  other  favorable  to  them,  the  latter  is  preferred."  ^^ 

In  1902,  in  the  case  of  Tucker  v.  Alexandroff,  the  broad 
basis  of  interpretation  was  stated :  "As  treaties  are  solemn  en- 
gagements entered  into  between  independent  nations  for  the 
common  advancement  of  their  interests  and  the  interests  of  civ- 
ilization, and  as  their  main  object  is,  not  only  to  avoid  war  and 
secure  a  lasting  and  perpetual  peace,  but  to  promote  a  friendly 
feeling  between  the  people  of  the  two  countries,  they  should  be 
interpreted  in  that  broad  and  liberal  spirit  which  is  calculated 
to  make  for  the  existence  of  a  perpetual  amity  so  far  as  it  can 
be  done  without  the  sacrifice  of  individual  rights  or  those  prin- 

17  De  Geof  roy  v.  Riggs,  133  U.  S.  258,  10  Sup.  Ct.  295,  33  L.  Ed. 
642.     See,  also,  Hauenslein  v.  Lynham,  100  U.  S.  487,  25  L.  Ed.  G28. 


§  75)  INTERPRETATION    OF   TREATIES.  201 

ciples  of  personal  liberty  which  lie  at  the  foundation  of  our 
jurisprudence."  ^* 

While  many  rules  for  the  interpretation  of  treaties  have  been 
given  by  various  writers/^  controversies  in  regard  to  interpre- 
tation have  in  fact  often  resulted  in  the  making  of  new  treaties 
which  would  secure  the  objects  sought  by  the  states.  Some- 
times a  protocol  or  declaration  is  added  to  a  treaty  interpreting 
the  treaty;  e.  g.,  in  the  protocol  of  April  29,  1872,  between  the 
United  States  and  the  German  Empire,  it  is  stated  that  "the 
expression  'property,'  used  in  the  English  text  of  articles  III 
and  IX,  is  to  be  construed  as  meaning  and  intending  'real  es- 
tate.' " 

In  recent  years  it  has  become  common  to  refer  disputes  as 
to  the  construction  of  treaties  to  arbitration,  and  many  general 
and  special  agreements  have  been  made  to  this  effect.  The 
United  States  has  entered  upon  a  policy  of  reference  of  differ- 
ences of  interpretation  to  arbitration,  as  follows: 

"Differences  which  may  arise  of  a  legal  nature,  or  relating 
to  the  interpretation  of  treaties  existing  between  the  two  con- 
tracting parties,  and  which  it  may  not  have  been  possible  to 
settle  by  diplomacy,  shall  be  referred  to  the  Permanent  Court 
of  Arbitration  established  at  The  Hague  by  the  Convention  of 
the  29th  July,  1899 :  Provided,  nevertheless,  that  they  do  not 
affect  the  vital  interests,  the  independence,  or  the  honor  of 
either  of  the  two  contracting  states,  and  do  not  concern  the 
interests  of  third  parties. 

"In  each  individual  case  the  high  contracting  parties,  before 
appealing  to  the  Permanent  Court  of  Arbitration,  shall  con- 
clude a  special  agreement  defining  clearly  the  matter  in  dis- 
pute, the  scope  of  the  powers  of  the  arbitrators,  and  the  periods 
to  be  fixed  for  the  formation  of  the  arbitral  tribunal  and  the 
several  stages  of  the  procedure.  It  is  understood  that,  on  the 
part  of  the  United  States,  such  special  agreements  will  be  made 
by  the  President  of  the  United  States,  by  and  with  the  advice 
and  consent  of  the  Senate  thereof."  ^° 

18  Tucker  v.  Alexandroff,  1S3  U.  S.  424,  22  Sup.  Ct.  195.  46  L.  Ed. 
204. 

19  2  Phillimore,  Int.  Law,  LXIV-XCIX. 

20  Treaty  between  United  States  and  France,  Feb.  10,  190S. 


202  TREATIES  AND  OTHER  AGREEMENTS.        (Ch.  7 

Similar  provisions  occur  in  many  treaties  negotiated  since 
the  First  Hague  Conference  in  1899  and  under  the  provisions 
of  the  Second  Hague  Conference  of  1907. 


MOST   FAVORED   NATION   CLAUSE. 

76.  This  is  a  clause  inserted  in  many  treaties,  especiallly  of 
a  commercial  natnre,  by  whicli  is  granted  to  tlie  parties 
advantages  similarly  conferred  or  ixrliich  may  be  sim- 
ilarly conferred  upon  tbird  poivers. 

Measures  of  reciprocity  were  taken  in  early  international 
dealing.  It  was  but  natural  that  states  which  entered  upon 
negotiations  with  a  state  should  desire  to  obtain  from  that 
state,  not  only  all  the  privileges  which  other  states  already 
possessed  as  a  result  of  negotiations,  but  also  the  advantages 
which  other  states  might  subsequently  acquire.  To  provide  for 
this,  clauses  were  introduced,  varying  in  form,  but  to  the  effect 
that  the  parties  to  the  treaty  should  receive  all  the  privileges 
and  immunities  accorded  to  any  nation  whatsoever  in  the  mat- 
ters specified.  Toward  the  end  of  the  seventeenth  century  the 
expression  "most  favored  nation"  came  into  use.  These 
treaties  did  not  relate  to  commercial  affairs  only,  but  often  to 
political  matters.^ ^  During  the  eighteenth  century  the  "most 
favored  nation"  clause  appeared  in  many  commercial  treaties. 

In  the  treaty  of  amity  and  commerce  negotiated  between  the 
United  States  and  France,  February  6,  1778,  the  general  form 
of  the  "most  favored  nation"  clause  appears : 

"Article  IV.  The  subjects,  people,  and  inhabitants  of  the 
said  United  States,  and  each  of  them,  shall  not  pay  in  the  ports, 
havens,  roads,  isles,  cities,  and  places  under  the  domination  of 
His  Most  Christian  Majesty,  in  Europe,  any  other  or  greater 
duties  or  imposts,  of  what  nature  soever  they  may  be,  or  by 
what  name  soever  called,  than  those  which  the  most  favored 
nations  are  or  shall  be  obliged  to  pay;  and  they  shall  enjoy  all 
the  rights,  liberties,  privileges,  immunities,  and  exemptions  in 
trade,  navigation,  and  commerce,  whether  in  passing  from  one 
port  in  the  said  dominions,  in  Europe,  to  another,  or  in  going 

=  1  Cavaretta,  La  Clausola  del  la  Nazione  piu  Favorita,  p.  59. 


§  76)  MOST    FAVORED    NATION    CLAUSE.  203 

to  and  from  the  same,  from  and  to  any  part  of  the  world, 
which  the  said  nations  do  or  shall  enjoy." 

In  the  same  treaty  there  appears  a  restriction  to  the  effect 
that  favors  may  be  in  return  for  equal  concessions : 

"Article  11.  The  Most  Christian  King  and  the  United  States 
engage  mutually  not  to  grant  any  particular  favor  to  other  na- 
tions, in  respect  of  commerce  and  navigation,  which  shall  not 
immediately  become  common  to  the  other  party,  who  shall  en- 
joy the  same  favor,  freely,  if  the  concession  was  freely  made, 
or  on  allowing  the  same  compensation,  if  the  concession  was 
conditional." 

The  form  used  in  article  II  of  this  treaty  has  been  used  in 
many  other  treaties  to  which  the  United  States  has  been  a 
party.  The  United  States  has  interpreted  the  "most  favored 
nation"  clause  as  aiming  at  equality  of  treatment.  In  commer- 
cial matters  the  following  rule  of  interpretation  was  given  in 
1898: 

"It  is  clearly  evident  that  the  object  sought  in  all  the  varying 
forms  of  expression  is  equality  of  international  treatment,  pro- 
tection against  the  willful  preference  of  the  commercial  inter- 
ests of  one  nation  over  another.  But  the  allowance  of  the 
same  privileges,  and  the  same  sacrifice  of  revenue  duties,  to  a 
nation  which  makes  no  compensation,  that  had  been  conceded 
to  another  nation  for  an  adequate  compensation,  instead  of 
maintaining,  destroys  that  equality  of  market  privileges  which 
the  'most  favored  nation'  clause  was  intended  to  secure.  It 
concedes  for  nothing  to  one  friendly  nation  what  the  other 
l^ets  only  for  a  price.  It  would  thus  become  the  source  of  in- 
ternational inequality  and  provoke  international  hostility. 

"The  neighborhood  of  nations,  their  border  interests,  their 
differences  of  climate,  soil,  and  production,  their  respective 
capacity  for  manufacture,  their  widely  different  demands  for 
consumption,  the  magnitude  of  the  reciprocal  markets,  are  so 
many  conditions  which  require  special  treatment.  No  general 
tariff  can  satisfy  such  demands.  It  would  require  a  certainty 
of  language  which  excludes  the  possibility  of  doubt  to  justify 
the  opinion  that  the  government  of  any  commercial  nation  had 
annulled  its  natural  right  to  meet  these  special  conditions  by 
compensatory  concessions,  or  held  the  right  only  on  condition 
of  extending  the  same  to  a  nation  which  had  no  compensation 


2U4  TREATIES  AND  OTHER  AGREEMENTS.        (Ch.  7 

to  offer.  The  fact  that  such  concessions,  if  made,  would  in- 
evitably inure  to  the  equal  benefit  of  a  third  competitor,  would 
often  destroy  the  motive  for,  as  well  as  the  value  of,  such 
reciprocal  concessions. 

"But,  instead  of  such  certainty  of  expression,  one  of  the 
articles  in  each  of  the  treaties  referred  to  contains  a  distinct 
recognition  that  special  and  compensatory  commercial  arrange- 
ments may  be  made,  notwithstanding  the  'most  favored  nation' 
clause,  and  provides  that  in  such  cases  the  favors  granted  shall 
be  enjoyed  by  the  party  claiming  favored  nation  treatment — 
gratuitously,  if  so  granted;  for  equivalent  compensation,  if 
granted  for  a  price. 

"\\'hat  will  be  an  equivalent  compensation  is  to  be  honorably 
determined  by  the  governments  concerned.  So  many  consid- 
erations have  necessarily  entered  into  such  special  concession- 
ary agreements  that  no  universal  rule  can  be  applied.  The 
price  has  often  been  special  privileges  in  the  market  of  the 
other  for  certain  manufactures  or  products  of  the  contracting 
country;  but  it  may  also  be  a  port,  a  bay,  or  an  island,  or  a 
protectorate,  as  well  as  an  expanded  market,  or  a  privileged 
export  trade.  It  may  be  anything  within  the  range  of  the 
treaty-making  power."  ^^ 

Certain  other  states,  including  Great  Britain,  have  contended 
that  the  "most  favored  nation"  clause  should  be  absolute  and 
unconditional  in  all  cases,  and  that  a  favor  granted  to  one 
state  should  extend  immediately  to  all  other  nations  having 
"most  favored  nation"  treaties  with  that  state. ^^ 

The  "most  favored  nation"  agreement  in  different  treaties 
varies  in  form  and  in  content.  In  treaties  to  which  the  United 
States  is  a  party  the  agreement  is  not  always  uniform. 

It  may  be  a  gratuitous  conferring  of  privileges,  it  may  be 
conditional,  or  it  may  depend  upon  like  concessions  on  the 
part  of  the  other  nation.  Reciprocity  is  frequently  at  the  basis 
of  this  agreement,  though  it  does  not  follow  that  the  conces- 
sions stipulated  for  are  equivalent.    When  privileges  granted 

22  5  Moore,  §  765,  p.  278. 

23  5  Moore,  §  765.  For  discussion,  see  J.  R.  Herod,  "Favored  Na- 
tion Treatment" ;  Stanley  K.  Hornbeeli  "The  Most-Favored  Nation 
Clause  in  Commercial  Relations" ;  Imperial  Japanese  Government  v. 
P.  &  O.  Co.,  [1895]  A-  C.  644. 


§  77)  TREATIES  OF  GUARANTY.  205 

under  the  "most  favored  nation  clause"  are  in  the  nature  of 
reciprocal  concessions,  as  in  fixing  of  taxes,  rights  of  citizens, 
etc.,  other  states  can  only  claim  such  privileges  under  a  "most 
favored  nation  clause"  through  the  grant  of  similar  conces- 
sions.^* 

A  "most  favored  nation  clause"  of  a  general  nature  appears 
in  the  treaty  between  the  United  States  and  Japan  of  Novem- 
ber 22,  1894,  by  which  nationals  of  the  respective  states  "shall 
not  be  compelled,  under  any  pretext  whatsoever,  to  pay  any 
charges  or  taxes  other  or  higher  than  those  that  are,  or  may  be, 
paid  by  native  citizens  or  subjects,  or  citizens  or  subjects  of 
the  most  favored  nation."  ^^ 


TREATIES    OF    GUARANTY. 

77.  Treaties  of  guaranty  are  agreements  througli  which  one 
or  more  powers  engage  to  maintain  given  conditions  or 
rights. 

Treaties  of  guaranty  were  particularly  common  in  the  nine- 
teenth century.  These  treaties  cover  a  wide  range  of  subjects, 
such  as  the  maintenance  of  neutrality,  the  maintenance  of  a 
particular  form  of  government  or  a  certain  status  quo,  or  the 
performance  of  a  certain  act. 

The  Act  of  Acknowledgment  and  Guaranty  of  the  Perpetual 
Neutrality  of  Switzerland,  and  of  the  Inviolability  of  Its  Ter- 
ritory, Paris,  November  20,  1815,  states  that:  "The  powers 
who  signed  the  declaration  of  the  20th  March  acknowledge,  in 
the  most  formal  manner,  by  the  present  act,  that  the  neutrality 
and  inviolability  of  Switzerland,  and  her  independence  of  all 
foreign  influence,  enter  into  the  true  interests  of  the  policy  of 

2  4  This  point  was  fully  discussed  in  the  controversy  over  the  inter- 
pretation of  the  treaty  of  1803  between  the  United  States  and 
France.  France  claimed  all  the  privileges  granted  to  any  nation, 
whether  or  not  in  exchange  for  special  concessions.  The  United 
States  contended  that  "  'a  most  favored  nation  clause'  cannot  be  un- 
derstood to  mean  that  France  should  enjoy  as  a  free  gift  that  which 
is  ceded  to  other  nations  for  a  full  equivalent."  5  American  State 
Papers,  Foreign  Relations,  152,  ff.  Herod,  Favored  Nation  Treatment, 
cc.  3,  10. 

2  B  Article  I. 


206  TREATIES   AND    OTIIKU   AGUEKMENTS.  (Ch.  7 

tlie  whole  of  Europe."  By  a  declaration  of  April  6,  188G, 
Great  Britain  and  the  German  Empire  gave  mutual  guaranty 
to  respect  their  spheres  of  influence  in  the  Western  Pacific. 
The  agreement  between  Great  Britain  and  Japan,  signed  at 
London,  August  12,  1905,  has  for  its  object: 

"(a)  The  consolidation  and  maintenance  of  the  general 
peace  in  the  regions  of  Eastern  Asia  and  of  India. 

"(b)  The  preservation  of  the  common  interests  of  all  powers 
in  China,  by  insuring  the  independence  and  integrity  of  the 
Chinese  Empire  and  the  principle  of  equal  opportunities  for 
the  commerce  and  industry  of  all  nations  in  China. 

"(c)  The  maintenance  of  the  territorial  rights  of  the  high 
contracting  parties  in  the  regions  of  Eastern  Asia  and  of  In- 
dia, and  the  defense  of  their  special  interests  in  the  said  re- 
gions." 

These  two  states  propose  to  secure  these  objects  as  follows: 

"Article  I.  It  is  agreed  that  whenever  in  the  opinion  of 
either  Great  Britian  or  Japan  any  of  the  rights  and  interests  re- 
ferred to  in  the  preamble  of  this  agreement  are  in  jeopardy, 
the  two  governments  will  communicate  with  one  another  fully 
and  frankly  and  will  consider  in  common  the  measures  which 
should  be  taken  to  safeguard  those  menaced  rights  or  interests. 

"Art.  II.  If  by  reason  of  unprovoked  attack  or  aggressive 
action,  wherever  arising,  on  the  part  of  any  other  power  or 
powers  either  contracting  party  should  be  involved  in  war  in 
defense  of  its  territorial  rights  or  special  interests  mentioned 
in  the  preamble  of  this  agreement,  the  other  contracting  party 
will  at  once  come  to  the  assistance  of  its  ally  and  will  conduct 
the  war  in  common  and  make  peace  in  mutual  agreement 
with  it." 

A  treaty  of  November  7,  1907,  respecting  the  independence 
and  territorial  integrity  of  Norway,  provides : 

"Article  2.  The  German,  French,  British,  and  Russian  gov- 
ernments recognize  and  undertake  to  respect  the  integrity  of 
Norway. 

"If  the  integrity  of  Norway  is  threatened  or  impaired  by 
any  power  whatsoever,  the  German,  French,  British,  and  Rus- 
sian governments  undertake,  on  the  receipt  of  a  previous  com- 
munication to  this  effect  from  the  Norwegian  government,  to 


§  78)  OPERATION    OF   A    TREATY.  207 

afford  to  that  government  their  support,  by  such  means  as  may- 
be deemed  the  most  appropriate,  with  a  view  to  safeguarding 
the  integrity  of  Norway." 


OPERATION   OF  A  TREATY. 

78.    A  treaty,  if  ratified,  is  binding— 

(a)  Upon  the  states  parties  to  it, 

(b)  In  general,  from  tbe  date  of  a  signing,  and 

(c)  Usually,  regardless  of   changes  in  the   form   of   govern- 

ment. 

(a)  A  treaty  is  essentially  an  agreement  to  which  states  are 
parties.  Two  states  cannot  properly  make  a  treaty  which  will 
deprive  a  third  state  of  its  rights,  though  many  treaties  do 
affect  the  relations  of  third  states.  A  treaty  is  not  in  itself 
binding  upon  the  nationals  of  a  state  or  upon  its  local  officials, 
but  must  in  general  be  made  thus  operative  by  municipal  law. 
The  Constitution  of  the  United  States  provides  that,  in  ad- 
dition to  the  Constitution  and  laws  in  accord  therewith,  "all 
treaties  made  or  which  shall  be  made  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land."  -^ 
The  Supreme  Court  has  said  "that  'a  treaty  may  supersede  a 
prior  act  of  Congress,  and  an  act  of  Congress  supersede  a  prior 
treaty,'  is  elementary."  ^^    Thus  in  the  United  States  a  treaty 

2  6  Const.  U.  S.  art.  6,  §  2. 

2T  Ward  V.  Race  Horse,  163  U.  S.  511,  16  Sup.  Ct.  1076,  41  L. 
Ed.  244. 

"The  second  section  of  the  sixth  article  of  the  Constitution  is: 
'This  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be  the  su- 
preme law  of  the  land.'  There  is  nothing  in  the  language  of  this 
clause  which  enables  us  to  say  that  in  the  case  supposed  the  treaty, 
and  not  the  act  of  Congress,  is  to  afford  the  rule.  Ordinarily  treaties 
are  not  rules  prescribed  by  sovereigns  for  the  conduct  of  their  sub- 
jects, but  contracts  by  which  they  agree  to  regulate  their  own  con- 
duct. This  provision  of  our  Constitution  has  made  treaties  part  of 
our  municipal  law ;  but  it  has  not  assigned  to  them  any  particular 
degree  of  authority  in  our  municipal  law,  nor  declared  whether  laws 
so  enacted  shall  or  shall  not  be  paramount  to  laws  otherwise  enacted. 
No  such  declaration  is  made,  even  in  respect  to  the  Constitution  itself. 
It  is  named  in  conjunction  with  treaties  and  acts  of  Congress  as  one 


20S  TREATIES  AND  OTHER  AGREEMENTS.        (Ch.  7 

is  by  the  fundamental  law  rendered  operative  to  the  same  ex- 
tent as  an  act  of  Congress,  and  in  case  of  conflict  would  be 
interpreted  in  accord  with  the  same  principles  as  apply  in  cases 
of  conflict  in  acts  of  Congress. 

(b)  A  modern  treaty  usually  contains  an  article  specifying 
the  date  upon  which  it  will  become  operative,  and  as  between 
the  states  parties  to  it  is,  in  absence  of  such  specification,  op- 
erative from  the  date  of  signing.  The  treaty  concluded  be- 
tween the  United  States  and  Japan,  November  22,  1894,  con- 
tained the  following:  "This  treaty  shall  go  into  operation  on 
the  17th  day  of  July,  1899."  -^  Nationals  of  a  state  cannot  in 
general  be  held  to  be  bound  by  a  treaty  till  it  is  made  known  by 
proclamation. 

(c)  The  change  in  the  form  of  government,  as  from  one 
party  to  another,  by  the  death  of  a  sovereign,  from  a  mon- 
archy to  a  republic,  is  not  considered  as  operating  to  terminate 
or  modify  the  provisions  of  a  treaty,  unless  the  treaty  is  made 


of  the  supreme  laws,  but  no  supremacy  is  in  terms  assigned  to  one 
over  the  other;  and  when  it  became  necessary  to  determine  whether 
an  act  of  Congress  repugnant  to  the  Constitution  could  be  deemed 
by  the  judicial  power  an  operative  law,  the  solution  of  the  question 
v.-as  found  by  considering  the  nature  and  objects  of  each  species 
of  law,  the  authority  from  which  it  emanated,  and  the  consequences 
of  allowing  or  denying  the  paramount  effect  of  the  Constitution.  It 
is  only  by  a  similar  course  of  inquiry  that  we  can  determine  the 
question  now  under  consideration. 

"In  commencing  this  inquiry  I  think  it  mnterial  to  observe  that 
it  is  solely  a  question  of  municipal  as  distinguished  from  public  law. 
The  foreign  sovereign  between  whom  and  the  United  States  a  treaty 
has  been  made  has  a  right  to  expect  and  require  its  stipulations  to 
be  kept  with  scrupulous  good  faith ;  l)ut  through  what  internal  ar- 
rangements this  shall  be  done  is  exclusively  for  the  consideration  of 
the  United  States.  Whether  the  treaty  shall  itself  be  the  rule  of 
action  of  the  people  as  w^ell  as  the  government,  whether  the  power 
to  enforce  and  apply  it  shall  reside  in  one  department  or  another,  nei- 
ther the  treaty  itself  nor  any  implication  drawn  from  it  gives  him 
any  light  to  inquire.  If  the  people  of  the  United  States  were  to 
repeal  so  much  of  their  Constitution  as  makes  treaties  part  of  their 
municipal  law.  no  foreign  sovereign  with  whom  a  treaty  exists  could 
justly  complain,  for  it  is  not  a  matter  with  which  he  has  any 
concern."  2  Curtis'  U.  S.  Circuit  Court  Decis.  454. 

2  8  Article  19. 


§  79)  TERMINATION    OF   TREATIES.  209 

with  reference  to  such  a  contingency.  The  state  is  regarded 
as  a  permanent  entity,  the  organs  of  which  may  change,  with- 
out modifying  the  relationships  of  states  to  one  another. 


TERMINATION  OF  TREATIES. 

79.  A  treaty  may  expire  in  accord  \iritli  the  terms  of  the 
treaty  agreement,  or  may  be  dissolved,  may  become 
void  or  voidable,  or  may  be  annulled. 

While  the  terms  of  treaties  or  conventions  may  cease  to  be 
binding  in  many  ways  and  for  different  causes,  treaties  or  con- 
ventions most  often  expire  in  accord  with  the  terms  under 
which  they  are  concluded.  Many  treaties  are  concluded  for 
the  performance  of  a  specific  object  or  to  maintain  a  certain 
status  for  a  definite  time.  Less  formal  agreements  than 
treaties  or  conventions  are  often  temporary  in  nature,  and  are 
regarded  as  at  an  end  if  there  is  not  ample  evidence  that  they 
are  still  binding.  A  common  provision  in  modern  treaties  is 
that  the  treaty  "shall  remain  in  force  until  the  expiration  of 
one  year  from  the  day  on  which  either  of  the  contracting  par- 
ties shall  give  notice  of  its  intention  to  terminate  the  treaty." 
A  convention  for  the  payment  of  a  certain  sum  of  money,  for 
the  cession  of  a  certain  territory,  or  for  similar  purposes, 
would  ordinarily  come  to  an  end  by  the  fulfillment  of  its  stipu- 
lations. In  the  treaty  between  Great  Britain  and  the  United 
States  of  November  19,  179-1::  "It  is  agreed  that  the  first  ten 
articles  of  this  treaty  shall  be  permanent,  and  that  the  subse- 
quent articles,  except  the  twelfth,  shall  be  limited  in  their  dura- 
tion to  twelve  years."  The  date  of  the  exchange  of  ratifica- 
tions was  fixed  as  the  time  when  this  treaty  should  become 
operative.  Ratifications  were  exchanged  October  28,  1795,  and 
articles  XI  to  XXVII,  mainly  relating  to  commercial  relations, 
expired  by  their  own  limitation  October  28,  1807. ^^ 

2  9  "Article  XXVII.  It  is  agreed  that  the  first  ten  articles  of  this 
treaty  shall  be  permanent,  and  that  the  subsequent  articles,  except 
the  twelfth,  shall  be  limited  in  their  duration  to  twelve  years,  to 
be  computed  from  the  day  on  which  the  ratifications  of  this  treaty 
shall  be  exchanged,  but  subject  to  this  condition:  That  whereas  the 
said  twelfth  article  will  expire,  by  the  limitation  therein  contained, 
Wils.Int.L. — 14 


210  TREATIES  AND  OTHER  AGREEMENTS.        (Cb.  7 

A  treaty  whose  conditions  have  not  been  fulfilled  may  be 
dissolved  by  mutual  agreement,  may  be  superseded  by  a  new 
agreement  upon  the  same  subject,  or  an  obligation  under  a 
treaty  may  terminate  by  the  voluntary  release  of  the  debtor 
state  from  the  obligation  by  the  state  in  whose  favor  the  obli- 
gation runs. 

A  treaty  which  has  not  come  to  an  end  in  accord  with  its 
own  provisions  and  has  not  been  dissolved  may  be  void,  if  it 
depends  upon  a  condition  which  has  ceased  to  exist,  by  the 
complete  destruction  of  the  thing  which  forms  the  object  of 
the  treaty,  when  its  execution  becomes  impossible,  or  by  decla- 
ration of  war,  which  either  suspends  or  entirely  destroys  its 
effect.  Such  conditions  arise  most  often  when  a  state  which 
has  been  a  party  to  a  treaty  ceases  to  exist,  as  when  a  state 
disappears  through  absorption  in  another  state,  through  par- 
tition, or  otherwise. 

Of  voidability  of  treaties  Hall  says :  "The  principle  which 
has  been  mentioned  as  being  a  sufficient  test  of  the  existence 
of  obligatory  force  or  of  the  voidability  of  a  treaty  at  a  given 
moment  may  be  stated  as  follows :  Neither  party  to  a  contract 
can  make  its  binding  effect  dependent  at  his  will  upon  condi- 
tions other  than  those  contemplated  at  the  moment  when  the 
contract  was  entered  into;  and,  on  the  other  hand,  a  contract 
ceases  to  be  binding  so  soon  as  anything  which  formed  an  im- 
plied condition  of  its  obligatory  force  at  the  time  of  its  conclu- 
sion is  essentially  altered.  If  this  be  true,  and  it  wall  scarcely 
be  contradicted,  it  is  only  necessary  to  determine  under  what 
implied  conditions  an  international  agreement  is  made.  When 
these  are  found,  the  reasons  for  which  a  treaty  may  be  de- 

at  the  end  of  two  years  from  the  signing  of  the  preliminary  or  other 
articles  of  peace,  which  shall  terminate  the  present  war  in  which 
His  Majesty  is  engaged,  it  is  agreed  that  proper  measures  shall  by 
concert  be  taken  for  bringing  the  subject  of  that  article  into  amicable 
ti'eaty  and  discussion,  so  early  before  the  expiration  of  the  said 
term  as  that  new  arrangements  on  that  head  may  by  that  time  be 
perfected  and  ready  to  take  place.  But  if  it  should  unfortunately 
happen  that  His  Majesty  and  the  United  States  should  not  be  able 
to  agree  on  such  new  arrangements,  in  that  case  all  the  articles  of 
this  treaty,  except  the  first  ten,  shall  then  cease  and  expire  together." 
Treaty  between  United  States  and  Great  Britain,  Nov.  19,  1794. 


§  79)  TERMINATION    OF   TREATIES.  211 

nounced  or  disregarded  will  also  be  found."  ^°  A  treaty  is  also 
naturally  voidable,  though  not  necessarily  void,  if  concluded  in 
excess  of  powers  of  the  negotiators,  sub  spe  rati ;  if  concluded 
because  of  danger  of  personal  violence  to  the  negotiators,  or 
through  fraud;  if  its  terms  are  inconsistent  with  the  general 
principles  of  international  law ;  if  the  performance  of  the  pro- 
visions of  the  treaty  would  destroy  the  state  itself,  or  deprive 
it  of  its  essential  attributes ;  or  if  the  conditions  under  which 
the  treaty  is  made  become  absolutely  altered.  The  principle 
of  rebus  sic  stantibus  is  held  to  be  implied  in  all  treaties,  though 
in  recent  times  it  is  clear  that  a  change  in  conditions  which 
would  render  a  treaty  voidable  must  be  such  as  to  be  vital. 

A  treaty  may  be  annulled,  or  may  come  to  an  end,  when  vio- 
lated by  a  party  to  it,  or  when  formally  abrogated  by  one  of  the 
parties. ^^  The  abrogation  of  a  treaty  by  one  party  may  not  be 
acceptable  to  the  other  party  and  may  be  made  the  basis  of 
claims.  Treaties  of  commerce,  alliance,  navigation,  etc.,  which 
relate  exclusively  to  relations  of  peace,  may  be  extinguished  by 
the  outbreak  of  war.  Treaties  which  are  of  a  permanent  na- 
ture, such  as  treaties  of  boundary,  etc.,  are  considered  as  sus- 
pended during  hostilities.  In  general,  treaties  made  in  con- 
templation of  war  may  become  operative  upon  the  outbreak  of 
hostilities,  and  can  be  annulled  only  by  the  method  prescribed 
in  the  treaties  themselves,  or  by  a  new  treaty.  The  Spanish 
decree  of  April  23,  1898,  declared  that:  "The  state  of  war 
existing  between  Spain  and  the  United  States  terminates  the 
treaty  of  peace  and  friendship  of  the  27th  October,  1795,  the 
protocol  of  the  12th  January,  1877,  and  all  other  agreements, 
compacts,  and  conventions  that  have  been  in  force  up  to  the 
present  between  the  two  countries."  The  United  States  de- 
clined to  consider  treaty  provisions  made  with  reference  to  the 
existence  of  war  "as  abrogated  by  war."  ^^  The  claim  of  the 
United  States  that  all  treaty  stipulations  were  not  abrogated 

3  0  Hall,  Int.  Law  (5th  Ed.)  p.  3.51. 

31  "It  has  been  adjudged  that  Congress  by  legislation,  and  so  far 
as  the  people  and  authorities  of  the  United  States  are  concerned, 
could  abrogate  a  treaty  made  between  this  counti-y  and  another 
country."  La  Abra  Silver  Mining  Co.  v.  United  States,  175  U.  S. 
423,  20  Sup.  Ct.  16S,  44  L.  Ed.  223. 

3  2  Foreign  Relations  U.  S.,  1S98,  p.  972. 


212  TREATIES  AND  OTHER  AGREEMENTS.        (Cb.  7 

seems  to  be  sustained  in  article  XXIX  of  the  Treaty  of  Friend- 
ship and  General  Relations  of  July  3,  1902,  which  state  that: 
"All  treaties,  agreements,  conventions  and  contracts  between 
the  United  States  and  Spain  prior  to  the  Treaty  of  Paris  shall 
be  expressly  abrogated  and  annulled,  with  the  exception  of  the 
treaty  signed  the  seventeenth  of  February,  1834,  between  the 
two  countries,  for  the  settlement  of  claims  between  the  United 
States  of  America  and  the  government  of  His  Catholic  Majes- 
ty, which  is  continued  in  force  by  the  present  convention." 

Among  writers  upon  international  law  there  is  much  differ- 
ence of  opinion  in  regard  to  the  effect  of  war  upon  treaties  be- 
tween the  belligerents.  As  certain  relations  between  the  bel- 
ligerents are  suspended,  the  treaty  stipulations  in  accord  with 
which  such  relations  were  maintained  must  necessarily  cease 
to  be  operative.  Better  opinion  now  seems  to  hold  that  treaty 
stipulations  which  do  not  relate  in  any  way  to  the  war  are 
merely  suspended  during  war,  and  again  become  operative 
at  its  close,  or  so  soon  thereafter  as  is  practicable.  The  copy- 
right convention  between  the  United  States  and  Spain  of  July 
10.  1S95,  was  regarded  as  suspended  during  the  war  of  189S, 
and  as  revived  by  the  ratification  of  peace,  April  11,  1899. 


CONTINUATION  OF  TREATIES. 

80.  Treaties  may  be  continued  in  efPect  by  renewal,  by  recon- 
firmation, or  other-roise,  w^hen  tbere  is  ample  evidence 
that  tbe  parties  intend  that  the  treaty  shall  remain 
operative. 

Certain  treaties  and  conventions  are  continued  in  accord 
with  their  own  stipulations,  unless  denounced ;  others  ter- 
minate at  a  specified  time,  unless  renewed.  Treaties  of  the 
first  class  may  thus  be  renewed  without  action,  while  treaties 
of  the  second  class  require  action  for  renewal.  Treaties  and 
conventions  of  this  second  class  frequently  relate  to  matters  of 
temporary  nature,  as  the  adjustment  of  claims,  boundaries, 
disputes,  etc.,  or  the  establishment  of  modi  vivendi.  Treaties 
terminated  or  suspended  by  war  are  usually  renewed  in  a 
formal  manner.     Treaties  are  sometimes  regarded  as  tacitly 


§  80)  CONTINUATION    OF   TREATIES.  213 

renewed,  when  the  parties  continue  to  observe  their  provisions, 
even  after  the  time  of  expiration. 

Sometimes  the  provisions  of  a  previous  treaty  are  recon- 
firmed, as  in  the  treaty  between  France  and  Spain,  October  1, 
1800,  relating  to  the  recession  of  Louisiana :  "The  obHgations 
contained  in  the  present  treaty  in  nothing  annul  those  which 
are  expressed  in  the  treaty  of  alliance  signed  at  St.  Ildefonso, 
on  the  2d  Fructidor,  year  4  (18th  of  August,  1796) ;  on  the 
contrary,  they  unite  with  new  ties  the  interests  of  the  two  pow- 
ers, and  confirm  the  stipulations  of  the  treaty  of  alliance  in  all 
the  cases  to  which  they  can  be  applied." 

Treaties  and  conventions  may  be  tacitly  considered  as  bind- 
ing, though  they  may  have  expired  by  limitation.  The  Hague 
Declaration  as  to  the  Launching  of  Projectiles  and  Explosives 
from  Balloons  expired  July  39,  1904,  during  the  Russo-Japa- 
nese war.  Both  Russia  and  Japan  continued  to  observe  the 
treaty  throughout  the  war. 


Part  IV 
INTERNATIONAL  DIFFERENCES 

WiLS.lNX.U  (215)» 


§  81)  AMICABLE  SETTLEMENT  OF  DIFFERENCES.  217 


CHAPTER  VIII. 

AMICABLE    MEANS    OF    SETTLEMENT    OF    INTERNATIONAL 
DIFFERENCES. 

81.  Nature  of  International  Differences. 

82.  Negotiation. 

83.  Good  Offices  and  Mediation. 

84.  Commissions  of  Inquiry. 

85.  Arbitration, 

86.  Award. 


NATURE   OF   INTERNATIONAI,  DIFFERENCES. 

81.    In   general,  international   differences    are    either  legal    or 
political  in  nature. 

Legal  differences  between  states  may  arise  in  consequence 
of  views  as  to  the  construction  of  treaties  or  other  agreements, 
or  through  conflicts  involving  principles  of  international  law. 

Political  differences  usually  involve  conflict  of  public  inter- 
ests or  national  policy. 

It  is  not  in  practice  always  possible  to  separate  the  legal  and 
political,  and  it  is  usually  possible  to  find  a  legal  ground  upon 
which  to  advance  a  political  claim,  if  a  cause  for  disagreement 
is  sought  by  a  state. 

In  general,  however,  legal  differences  are  more  easily  settled 
by  amicable  or  judicial  methods,  while  political  differences 
often  lead  to  some  use  of  force. 

The  amicable  means  of  settlement  of  international  dift'er- 
ences  include  negotiation,  good  oflices,  commissions  of  inquiry, 
arbitration,  and  congresses  and  conferences.  The  non-am- 
icable means  of  redress  short  of  war  include  breaking  of  diplo- 
matic relations,  retorsion,  reprisal,  of  which  embargo  is  a 
form,  non-intercourse,  display  or  restricted  use  of  force,  in- 
cluding pacific  blockade,  and  intervention. 


•-'18  AMICABLE  SETTLEMENT  OF   DIFFERENCES.  (Ch.  8 


NEGOTIATION. 

82.  Negotiation  through,  the  regular  interstate  agents  is  the 

customary  method  of  settling  differences  bet^veen 
states. 

The  procedure  in  case  of  negotiation  is  ordinarily  as  fol- 
lows :  One  state  presents  its  claim  ;  the  other  replies ;  if  there 
is  then  disagreement,  a  conference  or  an  exchange  of  com- 
munications ensues,  and  agreement  is  reached.  In  some  in- 
stances claims,  particularly  of  a  financial  nature,  have  been  the 
subject  of  diplomatic  negotiation  for  many  years.  The  "Mora 
claim,"  made  by  the  United  States  against  Spain  in  behalf  of 
a  naturalized  citizen  whose  property  had  been  confiscated  in 
Havana  in  1870,  was  the  subject  of  much  negotiation  for  twen- 
ty-five years,  until  settled  by  the  payment  of  $1,500,000.^ 

GOOD    OFFICES   AND    MEDIATION. 

83.  The  part  of  a  state  tendering   good  offices   or  mediation 

"consists  in  reconciling  the  opposing  claims  and  ap- 
peasing the  feelings  of  resentment  Tvhich  may  have 
arisen  betv/een  the  states  at  variance."  2 

At  the  Second  Hague  Conference  in  1907,  the  states  of  the 
world  agreed,  by  a  convention  generally  signed,  "in  case  of 
serious  disagreement  or  dispute,  before  an  appeal  to  arms, 
*  *  *  to  have  recourse  so  far  as  circumstances  allow  to  good 
offices  or  mediation  of  one  or  more  friendly  powers."  ^  Third 
powers  have  the  right  to  offer  mediation,  and  it  shall  be  re- 
garded as  a  friendly  act.  The  functions  of  a  mediator  end 
when  either  party  declines  mediation,  and  mediation  is  in  all 
cases  in  the  nature  of  advice,  and  the  parties  at  difference  are 
not  bound  to  accept  it  or  to  suspend  preparations  for  or  opera- 
tions of  war  through  the  acceptance  of  mediation.* 

1  Foreign  Relations  U.  S.  1895,  p.  1171. 

2  Ck)nvention  for  Pacific  Settlement  of  International  Disputes,  The 
Hague,  1907,  art.  4,  Appendix,  p.  520. 

8  Id.  art.  2,  Appendix,  p.  520. 

*  Id.  title  II,  contains  general  provisions  in  regard  to  good  offices 
and  mediation. 


§  83)  GOOD   OFFICES   AND   MEDIATION.  219 

Since  1850  mediation  or  good  offices  have  been  tendered  by 
the  United  States  in  many  instances  of  disputes  between  South 
American  states  and  the  proffer  has  often  been  accepted.  Simi- 
larly states  have  tendered  good  offices  in  most  cases  where  the 
relations  of  states  have  become  seriously  strained  in  recent 
years. 

On  June  8,  1905,  President  Roosevelt  tendered  his  good 
■offices  to  the  Russian  and  Japanese  governments  with  a  view  to 
terminating  the  war  between  those  two  states.  Identical  dis- 
patches were  sent  to  the  two  governments  as  follows : 

"The  President  feels  that  the  time  has  come  when,  in  the  in- 
terest of  all  mankind,  he  must  endeavor  to  see  if  it  is  not  pos- 
sible to  bring  to  an  end  the  terrible  and  lamentable  conflict  now 
being  waged.  With  both  Russia  and  Japan  the  United  States 
has  inherited  ties  of  friendship  and  good  will.  It  hopes  for 
the  prosperity  and  welfare  of  each,  and  it  feels  that  the  prog- 
ress of  the  world  is  set  back  by  the  war  between  these  two 
great  nations.  The  President  accordingly  urges  the  Russian 
and  Japanese  governments,  not  only  for  their  own  sakes,  but 
in  the  interest  of  the  whole  civilized  world,  to  open  direct  ne- 
gotiations for  peace  with  one  another.  The  President  suggests 
that  these  peace  negotiations  be  conducted  directly  and  ex- 
clusively between  the  belligerents — in  other  words,  that  there 
may  be  a  meeting  of  Russian  and  Japanese  plenipotentiaries  or 
delegates  without  any  intermediary,  in  order  to  see  if  it  is  not 
possible  for  these  representatives  of  the  two  powers  to  agree 
to  terms  of  peace.  The  President  earnestly  asks  that  the  Rus- 
sian government  do  now  agree  to  such  meeting,  and  is  asking 
the  Japanese  government  likewise  to  agree.  While  the  Presi- 
dent does  not  feel  that  any  intermediary  should  be  called  in  in 
respect  to  the  peace  negotiations  themselves,  he  is  entirely 
willing  to  do  what  he  properly  can,  if  the  two  powers  con- 
cerned feel  that  his  services  will  be  of  aid  in  arranging  the 
preliminaries  as  to  the  time  and  place  of  meeting;  but  if  even 
these  preliminaries  can  be  arranged  directly  between  the  two 
powers,  or  in  any  other  way,  the  President  will  be  glad,  as  his 
sole  purpose  is  to  bring  about  a  meeting  which  the  whole  civil- 
ized world  will  pray  may  result  in  peace." 

The  good  offices  of  the  President  were  accepted,  and  the 


220  AMICABLE   SETTLEMENT   OF   DIFFERENCES.  (Ch.  8 

representatives  of  Russia  and  Japan  met  in  the  United  States 
and  concluded  a  treaty  of  peace  at  Portsmouth,  N.  H.,  Septem- 
ber 5,  1905. 

COMMISSIONS    OF    INQUIRY. 

84.  The  Hagne  Conference  of  1899  provided  for  commissions 
of  inquiry  to  facilitate  the  solution  of  disputes  by  elu- 
cidating the  facts  by  means  of  an  impartial  and  con- 
scientious investigation  in  cases  of  diiferences  of  an  in- 
ternational nature  involving  neither  honor  nor  vital 
interests  and  arising  from,  difference  of  opinion  on 
points  of  fact. 

The  provisions  of  the  First  Hague  Conference  were  elab- 
orated by  the  Second  Hague  Conference,  and  the  procedure 
was  more  fully  prescribed.  The  six  articles  of  the  First  Hague 
Convention  of  1899  were  superseded  by  twenty-eight  in  the 
Second  Hague  Convention  of  1907.^  The  commission  of  in- 
quiry is  constituted  by  agreement  of  the  parties  at  variance ; 
but  its  report  is  to  be  limited  to  a  statement  of  facts  and  is  not 
in  the  character  of  an  award. 

The  International  Commission  of  Inquiry  into  the  North  Sea 
Incident  (Dogger  Bank  Affair),  constituted  by  agreement  be- 
tween Great  Britain  and  Russia,  was  made  up  of  five  naval 
officers,  one  each  from  the  British,  Russian,  French,  and  Amer- 
ican navies,  and  a  fifth  chosen  by  the  four.  By  the  declara- 
tion of  reference,  signed  at  St.  Petersburg,  November  25,  190-i^ 
"the  Commission  shall  inquire  into  and  report  on  all  the  cir- 
cumstances relative  to  the  North  Sea  incident,  and  particu- 
larly on  the  question  as  to  where  the  responsibility  lies,  and  the 
degree  of  blame  attaching  to  the  subjects  of  the  two  high  con- 
tracting parties,  or  to  the  subjects  of  other  countries  in  the 
event  of  their  responsibility  being  established  by  the  inquiry."' 
The  Commission  met  in  Paris  on  January  9,  1905,  and  rendered 
its  report  February  25,  1905.  The  Commission  inquired  into 
the  location  of  responsibility  and  degree  of  blame  in  the  firing 
by  the  Russian  fleet  upon  the  British  trawlers  in  the  North 
Sea.  In  article  XI  of  the  report  "the  majority  of  the  commis- 
sioners express  the  opinion  on  this  subject  that  the  responsibil- 

6  Id.  title  III. 


§  85)  ARBITRATION.  221 

ity  for  this  action  and  the  results  of  the  fire  to  which  the  fish- 
ing- fleet  was  exposed  are  to  be  attributed  to  Admiral  Rojdest- 
vensky."  The  North  Sea  incident  was  closed  by  the  payment 
of  £65,000  by  Russia  to  Great  Britain  on  March  9,  1905,  as 
indemnity  and  compensation  to  the  British  fishermen.®  Thus 
at  a  period  of  strained  international  relations  the  value  of  this 
provision  for  a  commission  of  inquiry  was  established. 

ARBITRATION. 

85.    "International   arbitration   has   for   its    object    tbe   settle- 
ment   of    disputes    between    states    by    judges    of    their 
ojviL  choice  and  on  the  basis  of  respect  for  la^xr. 
"Recourse  to  arbitration  implies  an  engagement  to  submit 
in  good  faith  to  the  awrard."  ' 

Historical. 

(a)  The  Greeks  seem  to  have  been  accustomed  to  the  idea 
of  arbitration  in  cases  relating  to  commerce,  boundaries,  and 
other  territorial  questions.  Rome  preferred  to  act  as  arbitrator 
among  subject  peoples.  With  the  growth  of  the  power  of  the 
church  in  the  Middle  Ages,  the  high  church  officials  were  often 
called  upon  to  act  as  arbitrators ;  but  from  the  fourteenth  to 
the  nineteenth  century  arbitrations  became  less  frequent,  and 
the  idea  had  little  place  in  the  political  thinking  of  the  days  of 
Napoleon. 

Among  the  Greeks  the  decision  of  the  arbitrators  carried 
weight,  sometimes  because  coming  from  the  Amphictyonic 
Council,  sometimes  because  rendered  by  a  tribunal  upon  which 
the  disputants  had  agreed.  The  decision  by  Rome  carried 
weight,  because  Rome  possessed  the  power  to  enforce  her  de- 
cision. The  decision  by  an  authority  of  the  church  of  the  Mid- 
dle Ages  carried  the  weight  of  the  authority  which  claimed  to 
be  highest  in  the  world,  and  the  dread  of  excommunication 
often  deterred  a  dissatisfied  party  from  questioning  the  award. 
In  the  centuries  following  the  Middle  Ages,  with  the  growth 
of  the  idea  of  the  equality  and  sovereignty  of  states,  the  idea 

6  See  Foreign  Relations  U.  S.  1004,  pp.  342,  796;  Id.  19.05,  p.  473; 
British  Parliamentary  Papers,  Russia  No.  2  (1905) ;    Id.  No.  3  a905). 

7  Convention  for  Pacific  Settlement  of  International  Disputes,  The 
H-ague,  1907,  art.  XXXVII,  Appendix,  p.  524. 


222  AMICABLE   SETTLEMENT   OK   DIFEEUENCES.  (Cll.   8 

of  arbitration  among  states  naturally  received  little  considera- 
tion, and  those  who  proposed  it  were  long  regarded  as  the- 
orists. 

In  the  nineteenth  century  the  resort  to  arbitration  as  a  means 
of  settling  international  differences  seems  at  first  to  have  been 
a  matter  of  convenience  or  of  expediency.  Gradually  the  val- 
ue of  such  a  practice  seems  to  have  been  recognized.  Dur- 
ing the  nineteenth  century  provision  for  arbitration  was  more 
and  more  frequent  in  treaty  stipulation.  In  the  treaty  of  Guad- 
alupe Hidalgo  of  1848  between  the  United  States  and  Mexico 
an  article  contains  an  agreement  for  arbitration  "with  respect 
to  the  interpretation  of  any  stipulation  of  this  treaty,  or  with 
respect  to  any  other  particular  concerning  the  political  or  com- 
mercial relations  of  the  two  nations."  ^  With  the  increasing 
cost  of  war  and  the  greater  risks,  it  has  secured  support  as  a 
policy,  and  it  was  formally  proposed  as  a  subject  for  discussion 
for  the  First  Peace  Conference  at  The  Hague,  1899,  "with  the 
object  of  preventing  armed  conflicts  between  nations."  The 
results  of  this  discussion  of  the  subject  of  international  arbi- 
tration at  The  Hague  in  1899  have  been  far  reaching  and  the 
progress  of  the  movement  for  international  arbitration  has 
been  very  great. 

8  "Article  XXI.  If  unhappily  any  disagreement  should  hereafter 
arise  between  the  governments  of  the  two  republics,  whether  with 
respect  to  the  interpretation  of  any  stipulation  in  this  treaty,  or  with 
respect  to  any  other  particular  concerning  the  political  or  commercial 
relations  of  the  two  nations,  the  said  governments,  in  the  name  of 
those  nations,  do  promise  to  each  other,  that  they  will  endeavor,  in 
the  most  sincere  and  earnest  manner,  to  settle  the  differences  so  aris- 
ing, and  to  preserve  the  state  of  peace  and  friendship  in  which  the 
two  countries  are  now  placing  themselves ;  using,  for  this  end,  mutual 
representations  and  pacific  negotiations.  And  if.  by  these  means, 
they  should  not  be  enabled  to  come  to  an  agreement,  a  resort  shall 
not,  on  this  accoimt,  be  had  to  reprisals,  aggi-ession  or  hostility  of 
any  kind,  by  the  one  republic  against  the  other,  until  the  government 
of  that  which  deems  itself  aggrieved  shall  have  maturely  considered, 
in  the  spirit  of  peace  and  good  neighborship,  whether  it  would  not  be 
better  that  such  difference  should  be  settled  by  the  arbitration  of 
commissioners  appointed  on  each  side,  or  by  that  of  a  friendly  nation. 
And  should  such  course  be  proposed  by  either  part>',  it  shall  be  ac- 
ceded to  by  the  other,  unless  deemed  by  it  altogether  incompatible 
with  the  nature  of  the  difference,  or  the  circumstances  of  the  case." 


§  85)  ARBITRATION.  223 

Convention  of  1907. 

(b)  The  forty-three  articles  especially  relating  to  interna- 
tional arbitration  in  the  Hague  Convention  for  the  Pacific  Set- 
tlement of  International  Disputes  of  1899  were  elaborated  and 
expanded  to  fifty-four  in  the  corresponding  Hague  Convention 
of  1907.  The  aim  of  this  convention,  which  replaces  that  of 
1899,  is  to  make  arbitration  as  widely  applicable  as  possible. 

It  is  recognized  by  this  Convention  that  arbitration  is  par- 
ticularly applicable  to  international  questions  of  a  legal  nature, 
especially  to  differences  arising  in  regard  to  the  interpretation 
of  treaties.  Its  scope  is  made  comprehensive,  and  powers  may 
by  special  agreements  make  arbitration  compulsory  for  any  or 
all  cases. 

A  Permanent  Court  to  sit  at  The  Hague,  competent  for  all 
cases,  is  established.  Each  contracting  power  is  entitled  to  se- 
lect four  persons  "of  known  competency  in  questions  of  inter- 
national law"  as  members  of  the  court.  Two  or  more  powers 
may  select  "in  common  one  or  more  members."  Contracting 
powers  wishing  to  have  recourse  to  the  court  may  agree  upon 
the  arbitrators,  or,  failing  this,  each  party  may  appoint  two 
arbitrators,  and  these  may  together  agree  upon  an  umpire.  If 
they  fail  to  agree,  the  two  powers  may  ask  a  third  power  to 
name  an  umpire,  or  each  power  may  select  a  power  to  repre- 
sent it  in  the  choice  of  an  umpire.  If  within  two  months  these 
powers  cannot  agree,  then  each  power  names  two  candidates, 
and  which  shall  serve  as  umpire  is  determined  by  lot. 

The  members  of  the  tribunal  thus  established  enjoy  diplo- 
matic immunities. 

The  procedure,  unless  other  rules  have  been  agreed  upon, 
is  to  clearly  define  the  controversy  and  other  necessary  details 
in  a  "compromis."  This  compromis,  if  made  by  mutual  agree- 
ment, is  signed  by  the  parties.  If  the  parties  wish,  the  Perma- 
nent Court  may  settle  the  compromis.  If  an  agreement  upon  a 
compromis  cannot  be  reached  by  the  parties,  one  of  them  may 
request  the  court  to  formulate  the  compromis  in  cases  provided 
for  by  treaty.  The  procedure  generally  consists  of  pleadings, 
or  the  presentation  of  the  cases,  counter  cases,  and  replies,  and 
of  discussions,  or  the  oral  development  of  the  arguments  be- 


22i  AMICABLE   SETTLEMENT   OF   DIFFERENCES.  (Ch.  8 

fore  the  tribunal.     Provision  is  made  for  the  utmost  freedom 
in  obtaining  the  most  adequate  information  upon  the  case. 

"The  tribunal  considers  its  decisions  in  private  and  the  pro- 
ceedings remain  secret."    A  majority  decides. 

Arbitration  by  Summary  Procedure. 

(c)  A  new  provision  is  made  in  the  Convention  of  1907  for 
arbitration  by  summary  procedure.  Under  this  system,  in  dis- 
putes admitting  this  method,  each  disputant  chooses  one  arbitra- 
tor, these  agree  upon  an  umpire,  or,  failing  to  agree,  each  party 
names  two  candidates,  not  being  members  appointed  by  them 
or  their  nationals,  and  from  these  an  umpire  is  chosen  by  lot. 
Each  party  is  represented  before  the  tribunal  by  an  agent. 
Proceedings  are  in  writing.  Each  party  is  entitled  to  ask  ques- 
tions and  to  call  experts.  The  tribunal  may  demand  oral  ex- 
planations from  agents,  experts,  or  witnesses.  The  umpire 
presides  over  the  tribunal,  and  decision  is  by  majority  of 
votes.® 

By  article  XL  (article  XIX  of  the  Convention  of  1899)  pro- 
vision is  made  for  special  treaties  between  states  extending 
compulsory  arbitration  to  all  cases  which  they  may  consider 
possible.  The  United  States  has  concluded  a  large  number  of 
treaties  since  1907,  including  the  following  articles: 

"Article  I.  Differences  which  may  arise  of  a  legal  nature  or 
relating  to  the  interpretation  of  treaties  existing  between  the 
two  contracting  parties,  and  which  it  may  not  have  been  possi- 
ble to  settle  by  diplomacy,  shall  be  referred  to  the  Permanent 
Court  of  Arbitration  established  at  The  Hague  by  the  Conven- 
tion of  July  29,  1899,  provided,  nevertheless,  that  they  do  not 
affect  the  vital  interests,  the  independence,  or  the  honor  of  the 
two  contracting  states,  and  do  not  concern  the  interests  of 
third  parties. 

"Article  II.  In  each  individual  case  the  high  contracting  par- 
ties, before  appealing  to  the  Permanent  Court  of  Arbitration, 
shall  conclude  special  agreement  defining  clearly  the  matter  in 
dispute,  the  scope  of  the  powers  of  the  arbitrators,  and  the 
periods  to  be  fixed  for  the  formation  of  the  arbitral  tribunal, 

9  Convention  for  Pacific  Settlement  of  International  Disputes,  The 
Hague,  1907,  title  IV,  §§  XXXVII-XO. 


§  85)  ARBITRATION.  225 

and  the  several  stages  of  the  procedure.  It  is  understood  that 
on  the  part  of  the  United  States  such  special  agreements  will 
be  made  by  the  President  of  the  United  States  by  and  with  the 
advice  and  consent  of  the  Senate  thereof." 

Grotius  in  1635  favored  compulsory  arbitration,  and  set 
forth  various  arguments,  particularly  emphasizing  the  reli- 
gious. He  said :  "And  both  for  this  and  for  other  reasons  it 
would  be  useful,  and  in  fact  almost  necessary,  that  congresses 
of  the  Christian  powers  should  be  held  where  controversies 
arising  among  some  of  them  may  be  adjusted  by  those  who 
have  no  interest  in  the  controversy  and  where  measures  may 
be  taken  to  compel  the  parties  to  accept  a  peaceful  settlement 
on  equitable  terms."  ^°  Many  plans  were  proposed  in  the  cen- 
turies after  Grotius,  but  the  working  out  of  the  system  of 
compulsory  arbitration  in  detail  seems  to  be  left  for  the 
twentieth  century. 

Court  of  Arbitral  Justice. 

(d)  At  the  Second  Hague  Convention  of  1907  it  was  pro- 
posed to  establish  a  Court  of  Arbitral  Justice,  which  should  be 
"competent  to  deal  with  all  cases  submitted  to  it,  in  virtue  ei- 
ther of  a  general  undertaking  to  have  recourse  to  arbitration 
or  of  a  special  agreement."  It  was  the  plan  to  constitute  an 
international  court  whose  judges  should  represent  the  differ- 
ent legal  systems  of  the  world,  a  court  which  should  be  con- 
tinuously in  session,  free  and  easy  of  access,  and  essentially 
judicial  in  nature.  It  was  hoped  that  its  decisions  would  be 
based  on  legal  grounds,  rather  than  upon  the  mixed  motives 
which  generally  influence  decisions  by  arbitrations.  It  was  not 
found  possible  to  agree  upon  the  method  of  appointment  of 
judges.  Secretary  Knox,  in  an  identic  note  of  October  18, 
1909,  suggested  to  the  powers  the  propriety  of  investing  the 
International  Prize  Court  with  the  functions  of  a  court  of 
arbitral  justice,  maintaining  that: 

"The  proposal  of  the  United  States  does  not  involve  the 
modification  either  of  the  letter  or  spirit  of  the  draft  conven- 
tion, nor  would  it  require  a  change  in  wording  of  any  of  its 
articles.     It  would,  however,  secure  the  establishment  of  the 

10  Grotius,  De  Jure  Belli  ac  Pacis,  lib.  II,  cap.  XXIII,  VIII,  4. 
Wils.Int.L. — 15 


22G  AMKWBLE   SETTI.KMi:XT   OF   DIFFIDENCES  (Cll.   8 

Court  of  Arbitral  Justice  as  a  chamber  of  the  world's  first  in- 
ternational judiciary,  and  thus  complete  through  diplomatic 
channels  the  work  of  the  Second  Hague  Conference  by  giving 
full  eftect  to  its  first  recommendation. 

"In  proposing  this  solution  of  the  difficulty  the  United  States 
is  influenced  by  daily  practice  and  procedure  in  its  national 
courts  of  justice,  where  one  and  the  same  judge  administers 
law  and  equity,  admiralty  and  prize,  which,  under  its  system 
of  procedure,  are  different  systems  of  law."  ^^ 

The  establishment  of  this  court,  which  aims  to  insure  "con- 
tinuity in  the  jurisprudence  of  arbitration,"  may  be  a  step  to- 
ward the  establishment  of  an  international  court  of  justice, 
the  decisions  of  which  would  be  judicial,  rather  than  arbitral. 

Conclusion. 

(e)  The  resort  to  arbitration  as  a  means  of  settling  interna- 
tional differences  has  become  frequent  in  recent  years.  La 
Fontaine  enumerates  177  cases  from  1794  to  the  end  of  1900. 
The  decisions  in  these  cases,  prior  to  the  adoption  of  the  Hague 
Conventions,  were  almost  invariably  accepted.^^  With  tlw 
growing  sentiment  favorable  to  arbitration,  resort  to  this 
method  of  settling  disputes  is  becoming  more  frequent,  and  it 
may  be  safe  to  say  that  with  the  present  provisions  for  an  im- 
partial court  the  decisions  will  require  no  further  sanction  to 
render  them  at  once  effective.  Since  the  United  States  and. 
Mexico  presented  the  first  case,  that  of  the  Pius  Fund,  to  the 
Hague  Court  in  1902,  doubts  as  to  the  future  of  the  court, 
which  had  prevailed  in  some  quarters,  have  been  dispelled,  and 
cases  of  the  utmost  gravity  have  been  submitted  to  its  arbitra- 
ment.^* 

114  A.  J.  I.  Doc.  p.  Ill;  Draft  Convention  of  Court  of  Arbitral 
Justice,  Appendix,  p.  568. 

12 IV  Kevue  de  Droit  Int.  et  de  Legislation  ComparSe,  2d  Series,  p. 
349  et  seq. 

1 3  For  cases  and  history  of  arbitration,  see  Moore,  History  and 
Digest  of  ttie  International  Arbitrations  to  Whicli  the  United  States 
has  been  a  Party,  6  vols. 


§  86)  AllBITRATION.  227 


SAME— A^VARD. 

86.  Tlie  Hague  Convention  of  1907  provides  that  "the  award, 
duly  pronounced  and  notified  to  agents  of  the  pai'ties, 
settles  the  dispute  definitively  and  •without  appeal," 
unless  the  parties  reserve  in  the  "compromis"  the  right 
w^ithin  a  fixed  time  to  demand  revision  of  the  aw^ard.i^ 

There  were  former!}^  many  opinions  as  to  the  reasons  which 
would  justify  the  setting  aside  of  an  arbitral  award.  The 
Hague  Convention  on  the  Pacific  Settlement  of  International 
Disputes,  1907,  tries  to  make  the  award  binding.  The  award 
is  to  be  signed  by  the  president  and  registrar  of  the  tribunal,  to 
give  the  reasons  upon  which  it  is  based,  and  to  be  "read  out" 
to  the  agents  and  counsel  of  the  parties.  In  case  of  dispute 
upon  the  terms  of  the  award,  it  is  to  be  referred  to  the  tribunal 
which  pronounced  it.  A  "compromis,"  agreed  upon  by  the 
parties,  may  provide  for  revision  of  the  decision  on  the  ground 
of  new  evidence.  The  award  is  not  necessarily  binding  on 
third  parties. 

The  first  award  rendered  by  the  Permanent  Court  of  Arbi- 
tration at  The  Hague  was  in  regard  to  the  Pius  Fund  of  the 
Californias.  The  case  was  submitted  to  the  tribunal  by  the 
United  States  and  Mexico  under  the  protocol  of  May  22,  1902. 
The  award  pronouncing  that  Mexico  should  pay  to  the  United 
States  "the  sum  of  $1,420,687.67  Mexican"  and  "the  annuity 
of  $43,050.99  Mexican"  was  given  on  October  22,  1902. ^'^ 

Awards  made  by  arbitrators  after  the  parties  have  agreed  to- 
abide  by  the  decision  are  final, ^"^  provided  the  decision  is  not 
based  on  fraud. ^^  The  award  made  by  the  umpire  in  the 
mixed  commission  under  the  convention  of  July  4,  1868,. 
between  the  United  States  and  Mexico  in  favor  of  Benjamin 
Weil,  a  naturalized  citizen  of  the  United  States,  for  cot- 
ton seized  by  Mexican  troops,  and  for  seizure  of  property 

14  Convention  for  the  Pacific  Settlement  of  International  Disputes^ 
Tbe  Hague,  1907,  articles  LXXX-LXXXV,  Appendix,  p.  531. 

15  The  Pius  Fund  of  the  Californias,  Foreign  Relations  U.  S.  1902,. 
Appendix  II. 

10  La  Xinfa  (1S9G)  21  C.  C.  A.  434,  75  Fed.  513. 
17  2  Moore,  International  Arbitrations,  1659. 


228  AMICABLE   SETTLEMENT   OF   DIFFERENCES.  (Ch.   8 

of  La  Abra  Silver  Mining-  Company  was  considered  by 
Mexico  to  be  open  to  suspicion  of  perjury  and  fraud.  Mex- 
ico paid  installments  under  the  award.  The  United  States 
government  withheld  certain  of  these  payments  from  distribu- 
tion to  the  claimants.  One  of  the  claimants  instituted  a  suit 
to  compel  distribution  of  the  installments.  The  Supreme 
Court  said :  "The  presentation  by  a  citizen  of  a  fraudu- 
lent claim  or  false  testimony  for  reference  to  the  commis- 
sion was  an  imposition  on  his  own  government;  and,  if 
that  government  afterwards  discovered  that  it  had  in  this  way 
been  made  an  instrument  of  wrong  towards  a  friendly  power, 
it  would  be  not  only  its  right,  but  its  duty,  to  repudiate  the  act 
and  make  reparation  as  far  as  possible  for  the  consequences  of 
its  neglect,  if  any  there  had  been.  International  arbitration 
must  always  proceed  on  the  highest  principles  of  national  hon- 
or and  integrity.  Claims  presented  and  evidence  submitted  to 
such  a  tribunal  must  necessarily  bear  the  impress  of  the  entire 
good  faith  of  the  government  from  which  they  come,  and  it 
is  not  to  be  presumed  that  any  government  will  for  a  moment 
allow  itself  knowingly  to  be  made  the  instrument  of  wrong  in 
any  such  proceeding."  ^^  This  award,  after  further  investiga- 
tion and  litigation,  was  found  to  be  based  upon  fraudulent 
evidence,^ ^  and  the  United  States  not  only  returned  to  Mexico 
the  undistributed  balances  of  the  installments  withheld,'"  but 
Congress  in  1902  appropriated  $412,570.70  to  repay  Mexico 
for  the  installments  already  received  and  distributed  by  the 
United  States.^^ 

An  award  made  without  due  regard  to  the  limitations  set 
forth  in  the  agreement  between  the  parties  may  be  set  aside 
on  the  ground  that  an  arbitrator  cannot  bind  the  governments 
concerned  in  respect  to  matters  not  submitted  for  decision.^^ 

18  Freliiighuysen  v.  Key,  110  U.  S.  63,  3  Sup.  Ct.  462,  28  L.  Ed.  71. 

19  La  Abra  Silver  Mining  Co.  v.  United  States,  175  U.  S.  423,  2i) 
Sup.  Ct.  168,  44  L.  Ed.  223. 

20  Foreign  Relations  U.  S.  1900,  pp.  781-784. 
2132  Stat.  5. 

2  2  North  American  Commercial  Co.  v.  United  States,  171  U.  S.  110, 
18  Sup.  Ct.  817,  43  L.  Ed.  98. 


§  88)  NON-AMICABLE    REDRESS   SHORT   OF   WAR.  229 

CHAPTER  IX. 

NON-AMICABLE  MEASURES  OF  REDRESS  SHORT  OF  WAR. 

87.  Non-Amicable  Measures  of  Redress, 

88.  Breaking  of  Diplomatic  Relations. 

89.  Retorsion. 

90.  Reprisals. 

91.  Embargo. 

92.  Non-Intercourse. 

93.  Display  or  Restricted  Use  of  Force. 

94.  Pacific  Blockade. 

NON-AMICABLE    MEASURES    OF   REDRESS    SHORT 
OF  W^AR. 

87.  The   measures,   short   of  war,  usually  resorted  to   for   se- 

curing redress,  are: 

(a)  Breaking  of  diplomatic  relations. 

(b)  Retorsion. 

(c)  Reprisal. 

(d)  Embargo. 

(e)  Non-intercourse. 

(f)  Display  or  restricted  use  of  force. 

(g)  Pacific  blockade. 

SAME— BREAKING   OF  DIPLOMATIC   RELATIONS. 

88.  The    breaking    of    diplomatic    relations   is    an    evidence    of 

strained    relations    betiveen    states,    and    is    often    the 
step  preceding  \irar. 

When  one  state  has  a  difference  with  another,  a  common 
form  of  pubHc  protest  is  by  severance  of  diplomatic  relations. 
This  may  be  by  the  delivery  of  his  passport  to  the  agent  of 
the  state  against  which  the  grievance  lies,  or  by  the  recall  or 
departure  of  the  diplomatic  agent  of  the  injured  state  from  the 
offending  state.  In  the  claims  lodged  by  one  state  against  an- 
other it  is  not  always  easy  to  distinguish  the  offending  state 
from  the  offender;  but  the  rupture  of  diplomatic  relations  by 
either  party  is  an  evidence  that  the  relations  between  the  states 


230  NON-AMICABLE    KEDKESS   SHORT   OF    WAR.  (Ch.  9 

are  no  longer  entirely  friendly,  and  that  the  party  breaking 
these  relations  desires  to  emphasize  the  fact  that  it  considers 
its  rights  infringed,  denied,  or  imperiled.  On  April  20,  1898, 
the  Spanish  Minister  to  the  United  States  sent  the  following 
communication  to  the  Secretary  of  State : 

"The  resolution  adopted  by  the  Congress  of  the  United 
States  of  America,  and  approved  to-day  by  the  President,  is  of 
such  a  nature  that  my  continuance  in  Washington  becomes  im- 
possible and  obliges  me  to  request  of  you  the  delivery  of  my 
passports. 

"The  protection  of  Spanish  interests  will  be  intrusted  to  the 
French  Ambassador  and  to  the  Austro-Hungarian  Minister."  ^ 

On  February  6,  1904,  the  Japanese  Minister  addressed  a  note 
to  the  Russian  Minister  of  Foreign  Afifairs,  which,  after  giv- 
ing a  resume  of  the  Japanese  contentions,  states  that  "the  Im- 
perial Government  have  no  other  alternative  than  to  terminate 
present  futile  negotiations.  In  adopting  that  course  the  Im- 
perial Government  reserve  to  themselves  the  right  to  take  such 
independent  action  as  they  may  deem  best  to  consolidate  and 
defend  their  menaced  position,  as  well  as  to  protect  their  estab- 
lished rights  and  legitimate  interests."  ^ 

After  considerable  negotiation  in  regard  to  the  killing  of 
certain  Italians  in  New  Orleans  in  1891,  the  Italian  government 
considered  that  the  United  States  was  not  willing  to  grant 
sufficient  satisfaction.  Baron  Fava,  the  Italian  Minister  to 
the  United  States,  in  a  communication  to  the  Secretary  of  State 
March  31,  1891,  said:  "Under  these  circumstances,  the  gov- 
ernment of  His  Majesty,  considering  that  the  legitimate  action 
of  the  King's  minister  at  Washington  becomes  inefficacious, 
has  ordered  me  to  take  my  departure  on  leave."  ^ 

SAME-RETORSION. 

89.  Retorsion  is  a  species  of  retaliation  in  kind.  It  usually 
consists  in  treating  the  subjects  of  the  state  g^iving 
cause  for  retaliation  in  a  manner  analogous,  if  not 
identical,  w^itli  that  accorded  to  the  subjects  of  the 
state  resorting  to  retorsion. 

1  Foreign  Relations  U.  S.  1898,  p.  765.  s  id.  1891,  p.  675. 

2  Id.  1904,  p.  412,  full  text  of  note. 


§  90)  REPRISALS.  231 

Certain  acts  which  may  be  entirely  within  the  legal  compe- 
tence of  a  state  may  place  the  subjects  of  another  state  under 
disabilities.*  In  such  cases  protest  is  sometimes  made  by  the 
other  state  by  resort  to  identical  or  similar  measures.  The  act 
of  a  state  may  be  unfriendly,  discourteous,  or  an  unfair  dis- 
crimination. 

While  an  act  at  which  retorsion  is  aimed  may  not  be  illegal, 
yet  it  may  be  such  as  to  affect  a  state  or  its  citizens  in  such 
manner  as  to  require  remedy.  Just  how  far  retorsion  will  be 
applied  will  be  a  matter  of  policy  rather  than  law. 

A  state  may  restrict  the  action  or  privileges  of  certain  for- 
eigners sojourning  or  entering  within  its  borders.  The  state 
whose  nationals  have  been  restrained  may  place  similar  re- 
strictions on  the  action  of  the  nationals  of  the  first  state,  who 
in  turn  come  within  its  borders.  A  state  may  place  restrictions 
upon  commerce  and  trade,  which  may  be  met  with  correspond- 
ing restrictions  by  other  states.  How  far  such  restrictions  may 
go  is  not  a  matter  of  law,  but  of  political  policy.  The  use  of 
various  means  of  retorsion  has  in  recent  years  become  com- 
mon, particularly  in  commercial  relations  through  tariffs  or 
discriminating  duties.  When  heavy  duties  have  been  placed  on 
articles  which  are  especially  produced  by  one  state,  that  state 
may  resort  to  imposition  of  special  duties  or  special  restric- 
tions upon  articles  produced  by  the  state  first  levying  heavy 
duties.  This  may  lead  the  first  state  to  impose  still  further 
restrictions,  and  the  commercial  relations  between  the  two 
states  may  be  interrupted  or  practically  at  an  end. 

Since  the  influence  of  those  engaged  in  commerce  and  trade 
has  in  modern  times  had  much  weight  with  those  in  political 
power,  retorsion,  or  the  fear  of  retorsion,  has  frequently  led  to 
the  repeal  of  objectionable  legislation  or  prevented  action 
which,  while  legal  according  to  domestic  law,  would  be  unfair, 
would  be  discourteous,  or  would  work  undue  hardship, 

SAME— REPRISALS. 

90.  Reprisals  consist  in  tlie  adoption  of  measures  of  retalia- 
tion in  order  to  obtain  redress  for  action  committed  in 
violation  of  international  right. 

*  Heilborn,  Das  System  des  Volkerrechts,  352. 


232  NON-AMICABLE    REDRESS    SHORT    OF   WAR.  (Ch.  9 

Retorsion  is  usually  resorted  to  as  a  matter  of  political  ex- 
pediency, when  by  acts  which  may  not  be  internationally  illegal 
a  state  has  conducted  itself  in  an  unfair  manner  toward  an- 
other state  or  its  citizens.  Reprisals,  on  the  other  hand,  at- 
tempt to  secure  remedy  in  case  of  international  delinquency 
or  injustice  either  toward  a  state  or  its  citizens.  Acts  of  re- 
prisal may  be  of  the  same  character  as  acts  of  war ;  but,  as 
fney  are  aimed  to  secure  redress  for  a  given  act,  they  are  not 
necessarily  regarded  as  hostile.  Reprisals  may  involve  the 
seizure  and  confiscation  of  private  property,  and  in  extreme 
cases  personal  restraint,  or  compulsion  commensurate  with  the 
injury  done  and  sufficient  to  obtain  reparation.  Suspension  of 
judicial,  commercial,  or  other  rights  has  been  common.  In 
early  days  letters  of  marque  and  reprisal  were  issued  to  private 
persons,  in  order  that  they  might  avenge  supposed  wrongs. 
The  modern  tendency  has  been  to  restrict  the  measures  of  re- 
prisal more  to  the  field  of  commercial  intercourse.  The  range 
of  action,  however,  still  varies. 

In  1887  the  United  States  Congress  passed  an  act  empower- 
ing the  President,  in  case  the  rights  of  United  States  fishermen 
were  denied  or  abridged  in  Canadian  waters,  to  deny  Canadian 
vessels  entrance  to  the  waters  of  the  United  States,  and  also 
to  deny  entry  to  any  or  all  Canadian  products.^  France  in 
1901  seized  the  island  of  Mitylene  in  order  to  secure  the 
recognition  by  Turkey  of  certain  financial  and  other  claims. 

In  December,  1908,  the  Netherlands  ship  of  war  Gelderland 
seized  the  Venezuelan  coast  guard  ship  Alix  ofif  the  Venezuelan 
coast  and  took  her  to  the  near  by  Dutch  port  of  Willemstad. 


SAME— EMBARGO. 

91.  Embargo  is  a  special  form  of  reprisal,  and  consists  in  gen- 
eral in  tlie  sequestration  of  the  public  or  private  prop- 
erty of  an  offending  state.  It  may  sometimes  be  ap- 
plied by  a  state  to  its   o-nrn  vessels. 

Embargo  was  formerly  a  common  method  of  redress.     If 
war   followed  before  the  embargo  was  raised,  the  detained 

6  24  Stat.  475  (U.  S.  Comp.  St.  1901,  p.  2785). 


§  93)  DISPLAY    OK   RESTRICTED   USE   OF   FORCE,  233 

ships  of  the  offending  state  were  seized  as  prize.  Otherwise 
they  were  released  when  the  embargo  was  raised.  The  United 
States  resorted  to  this  means  of  redress  in  1794,  1797,  1807, 
1808,  and  1812.  An  embargo,  sometimes  called  civil  or  pacific, 
may  by  domestic  law  regulate  the  movements  of  the  vessels 
belonging  to  a  state,  in  order  to  prevent  the  seizure  by  an- 
other state,  or  in  order  to  put  other  pressure  upon  an  offending 
state. 

With  the  growth  of  international  commerce,  it  has  now 
become  common  to  allow  innocent  vessels  of  foreign  states, 
even  of  enemy  states,  as  large  a  degree  of  freedom  as  possi- 
ble, even  a  certain  number  of  "days  of  grace"  for  loadmg 
and  departure  on  the  outbreak  of  war.« 

SAME— NON-INTERCOURSE. 

92.  Non^intercourse  laws  may,  for  the  purpose  of  placing 
stress  upon  a  state  wliicli  is  regarded  as  an  ofPender, 
prohibit  trade  or  other  relations  with  its  nationals. 

Non-intercourse  acts  have  often  been  associated  with  em- 
bargo acts,  but  are  usually  more  general  in  character.  The 
United  States  passed  several  non-intercourse  acts  in  the  late 
years  of  the  eighteenth  and  in  the  early  nineteenth  century. 
Commercial  intercourse  with  France  was  suspended  by  an  act 
of  Congress  of  Jwne  13,  1798.  Other  acts  of  similar  nature 
followed.  The  non-intercourse  act  of  March  1,  1809,  aimed 
at  Great  Britain,  was  broad  in  its  provisions,  and  its  enforce- 
ment created  much  friction.  The  irritation  caused  by  embargo 
and  non-intercourse  acts  is  so  great  that  these  are  now  com- 
monly regarded  as  impolitic  methods  of  obtaining  redress. 

DISPLAY  OR  RESTRICTED  USE  OF  FORCE. 

93  The  display  of  force  as  a  form  of  constraint  to  insure  ob- 
servance of  rights  is  sometimes  resorted  to  where  the 
course  of  justice  is  uncertain  or  the  political  condi- 
tions are  disturbed.  The  force  may  be  used  to  a  lim- 
ited degree  without  resorting  to  war. 

6  Post,  p.  289. 


234  NON-AMICABLE    REDRESS   SHORT   OF   WAR.  (Ch.  9 

The  display  of  force  carries  with  it  the  intimation  that  the 
state  making;  the  display  may  use  the  force  if  its  rights  are 
not  respected.  In  the  report  of  the  Secretary  of  State  of  the 
United  States,  December  19,  1895,  in  regard  to  disturbed  con- 
ditions in  the  Turkish  Empire  it  is  said  that:  "The  efforts  of 
the  minister  have  had  the  moral  support  of  the  presence  of 
naval  vessels  of  the  United  States  on  the  Syrian  and  Adanan 
coasts  from  time  to  time  as  occasion  required,  and  at  the  pres- 
ent time  the  San  Francisco  and  A'larblehead  are  about  to  be 
joined  by  the  Minneapolis,  which  has  lately  been  ordered  to 
the  eastern  waters  of  the  Mediterranean."  ^ 

In  March,  1900,  the  diplomatic  representatives  in  China, 
fearing  a  Boxer  outbreak,  asked  their  respective  governments 
to  make  a  naval  demonstration  in  Chinese  waters.^  A  ship 
was  detailed  by  the  United  States,  according  to  telegram,  "for 
independent  protection  of  American  citizens  and  interests  in 
China."  The  display  of  force  was  not  sufficient.  The  lega- 
tions at  Pekin  were  besieged  and  cut  off  from  communication. 
Forces  of  the  various  nations  were  dispatched  to  their  rescue, 
though  there  was  no  war.^  In  the  award  of  the  Venezuelan 
Arbitration  in  1903,  preferential  treatment  was  given  to  the 
powers  which  had  resorted  to  hostile  measures  to  enforce  their 
claims.^" 

In  many  cases  the  display  of  force  is  merely  to  emphasize 
the  urgency  of  the  demand.  Its  use  should  be  simply  to  pre- 
serve rights  or  to  secure  those  already  possessed.  When  this 
end  is  attained,  all  measures  of  redress  should  terminate.  In 
the  case  of  the  display  of  force  in  1902  in  order  to  enforce 
claims  against  Venezuela,  the  powers  concerned  felt  it  neces- 
sary to  pass  beyond  the  measures  short  of  war  to  actual  war, 
though  the  hostilities  were  confined  to  a  single  object.  The 
range  of  redress  may  thus  pass  from  the  simple  show  of  force 
to  the  border  line  of  war,  or  to  actual  war. 

7  Foreign  Relations  U.  S.  1895,  p.  1257. 

8  Id.  1900,  p.  102. 

9  Id.  1900,  p.  102  et  seq. 

10  Penfield's  Report,  Venezuelan  Arbitration,  1903,  p.  110. 


§  94)  DISPLAY    OR    RESTRICTED    USE    OF    FORCE.  235 

SAME-PACIFIC   BLOCKADE. 

tute  a  blockade,  without  technically  destroying  the  pa- 
cific relations  of  the  parties  affected. 

Pacific  blockade  ordinarily  takes  the  form  of  dosing  by 
force  of  one  or  more  ports  of  a  country  m  "■'d"  '»  b"ng  the 
country  to  terms.     Strictly  speakmg,  blockade  is  a  war  meas 
ure  and  modern  tendency  has  been  in  the  direction  of  hmitmg 
blockade  to  the  time  of  war. 

This  measure  of  enforcing  demands  by  one  <>'  •™;^  ™"°"^ 
was  first  resorted  to  in  182T,  when  France,  Great  Butam  and 
Russia  blockaded  all  the  coasts  of  Greece  »'«  "=.  J"rk,sh 
armies  were  encamped.  The  three  powers  .■"^'"'^'"^f  *a 
this  was  a  pacific  measure;  but  ,t  resulted  m  the  battle  of 
Navarino,  and  the  destruction  of  the  Turkish  navy. 

The   so-called  "pacific  blockades"   «'f' ;^'>'=<l,7^,'=„ j.'J', 
have  varied  greatly  in  "ature.    These  indude;    Tte  b^°^  f 

^Lf  Nr  cLa^rr;  C^ett  Brtin' I'/ae;    Mexico  by 
Fran«    1838;    La  Plata  by  France,  1838-1840 ;    Greece  by 
Gea    Britain    1850;    Menam  by  France.  1883;?°™°-,^^ 
France,  1884;   Greece  by  Five  Great  Powers,  1886 ,   Zanziba 
by  For  ugal,  1888;   Greece  by  Six  Great  Powe-s,  189- ,   ami 
Venezuela  by  Great  Britain,  Germany,  and  Italy.  1902.     The 
Imiber  of  cases  during  the  nineteenth  century  was  sufficient 
to  establish  the  practice  of  using  this  method  of  constraint. 
Before     850,  it  was  claimed  that  ships  of  third  states  were 
bound  to  respect  pacific  blockades,  and  that  they  mlgh    be 
seized  for  attempting  to  violate  the  blockade,  and  might  be 
detained  without  condemnation.     Since  that  time  the  drift  of 
oonon  and  practice  has  been  toward  the  restriction  of  the 
XTs  of  pacific  blockade  so  far  as  possible  <o  the  blockadnig 
and  blockaded  parties.    When  France  engaged  in  the  blockade 
o    Formosa  in  1884,  Lord  Granville  -'d ;    "The  contention  of 
the  French  government  that  a  'pacific  blockade    <;o"*«'s  «" 
the  blockading  power  the  right  to  capture  and  condemn  the 


1236  NON-AMICABLE    REDRESS   SHORT   OF   WAR.  (Oil.   0 

ships  of  third  nations  for  a  breach  of  such  a  blockade  is  in 
conflict  with  well-estabHshed  principles  of  international 
law."  ^^  In  1897  the  United  States  distinctly  announced  that 
it  did  not  concede  the  right  of  the  powers  to  establish  without 
declaration  of  war  a  blockade  of  Crete  which  would  affect 
third  states.^ 2  The  United  States  took  the  same  position  with 
reference  to  the  attempt  to  extend  to  states  not  concerned  the 
consequences  of  the  so-called  "pacific  blockade"  of  Venezuela 
in  1902.  While  Germany  was  in  favor  of  maintaining  a  pacific 
blockade,  "Great  Britain  insisted  that  the  blockade  should  be 
warlike  in  character,"  though  at  first  these  powers  did  not  in- 
tend to  declare  war.  Subsequently  acknowledgment  was  made 
that  a  state  of  war  actually  existed,  and  on  December  20,  1902, 
a  proclamation  of  blockade  was  issued.^^ 

The  weight  of  authority  is  against  the  admission  of  a  doc- 
trine of  pacific  blockade  which  would  affect  third  states  not 
parties  to  the  difficulties  involved.  Some  authorities  doubt  the 
expediency  of  such  a  measure  in  any  case.^*  General  opinion 
seems  to  be  favorable  to  the  toleration  of  this  form  of  reprisal, 

11  British  Parliamentary  Papers.  Frauce  No.  1  (1885),  Letter  of 
Nov.  11,  1884. 

12  Foreign  Relations  U.  S.  1897,  pp.  253-255;    Id.  1898,  p.  384. 

13  Foreign  Relations  U.  S.  1903,  p.  417  et  seq. 

14  Boufils  says: 

"The  so-called  pacific  blockade  cannot  be  justified,  either  in  the 
name  of  humanity  or  from  the  point  of  view  of  good  sense.  The 
catastrophe  of  Navarino  shows  that  it  may  have  a  bloody  ending. 
In  time  of  peace,  reprisals  ought  to  injure  only  the  state  which  pro- 
vokes them.  The  pacific  blockade  can  produce  serious  results  only 
when  neutral  states  are  obliged  to  respect  it.  But  there  can  be  no 
question  of  neutrality,  properly  so  called,  in  time  of  peace.  No  ob- 
ligation, in  the  proper  and  juridical  sense,  can  oblige  third  states  to 
submit  to  the  conditions  of  a  pacific  blockade.  But  under  these  limi- 
tations the  blockade  has  neither  meaning  nor  value.  If  it  is  main- 
tained with  regard  to  third  states,  it  injures  their  rights  and  legiti- 
mate interests. 

"For  powers  of  the  first  rank,  the  pacific  blockade  constitutes  a 
means,  little  burdensome,  therefore  more  alluring,  of  making  states 
of  the  second  rank  to  submit  to  all  kinds  of  vexations  and  annoy- 
ances. At  bottom  it  is  simply  an  act  of  war,  a  fact  of  hostility.  In 
resorting  to  pacific  blockade,  the  powers  do  not  endeavor  to  escape 
war  itself,  but  only  the  inconveniences  and  main  obligations  which 
war  brings.     It  is  considerations  of  interest,  and  not  considerations 


§  94)  DISPLAY    OR    RESTRICTED    USE    OF    FORCE.  237 

provided  its  effects  are  strictly  confined  to  the  blockading  and 
blockaded  parties.  Such  limitation  lessens  the  effectiveness  of 
pacific  blockade,  which  in  early  days  was  often  an  attempt  to 
secure  the  advantages  of  war  without  its  obligations.  Some- 
times resort  to  pacific  blockade  has  averted  severer  measures. 
The  name  "pacific  blockade"  is  contradictory  in  itself ;  but,  if 
the  measure  is  so  guarded  as  not  to  operate  as  a  war  measure 
against  third  states,  probably  little  objection  will  be  raised,  as 
the  parties  concerned  have  the  option  of  regarding  it  as  hos- 
tile if  expedient  for  themselves,  and  third  states  should  not  or- 
dinarily be  concerned  with  measures  of  reprisal  which  do  not 
interfere  with  their  rights.^ ^ 

of  humanity,  which  urge  maritime  powers  to  resort  to  this  means  of 
constraint,  which  causes  great  losses  to  commerce  in  general." 

Droit  Int.  Public  (Fauchille's  Ed.)  §§  992-1)1)3. 
16  Hogan,  A.  E.,  Pacific  Blockade,  p.  70. 


Part  V 
WAR 


Wn-s.lNT.U  (239)* 


§95)  NATURE   AND   COxAlMENCEMENT   OF    WAR.  241 


CHAPTER  X. 

NATURE  AND  COMMENCEMENT. 

95.  War  Defined. 

96.  Kinds  of  War. 

97.  Object  of  War. 

98.  Commencement. 

99.  Declaration. 

100.     Date    of    Commencement. 


TVAR    DEFINED, 

95.  Broadly  defined,  "■war  is  a  properly  conducted  contest  of 
armed  public  forces,"  i  or  the  legal  condition  under 
w^Mch  such  contest  wrould  be  authorized. 

War  implies  the  right  of  the  parties  legally  to  exercise  force 
against  one  another.  Grotius  says  that:  "In  treating  of  the 
law  of  war,  we  have  to  find  out  what  is  war,  which  is  the  sub- 
ject under  investigation;  what  the  law,  which  is  sought.  Cic- 
ero called  war  a  contention  by  force.  Usage,  however,  holds 
that  not  the  action,  but  the  state,  is  indicated  by  the  term  'war,' 
so  that  war  is  the  condition  of  contention  by  force,  as  such."  ^ 

Later  definitions  tended  to  exclude  private  wars,  which 
Grotius  specifically  states  that  he  does  not  exclude.    The  earli- 

1  Geutilis,  De  Jure  Belli  (15SS)  bk.  I,  c.  2.  "Bellum  est  publicorum 
armorum  justa  coutentio." 

Bluntschli,  §  510:  "La  guerre  est  I'ensemble  des  actes  par  lesquels 
un  etat  ou  un  peuple  fait  respecter  ses  droits,  en  luttant  par  les  armes 
contre  un  autre  etat  ou  an  autre  peuple." 

§  511:  "La  guerre  est,  en  regie  generale  une  lutte  armee  entre 
divers  etats,  a  I'occasion  d'une  question  de  droit  public." 

3  Phillimore,  Int.  Law,  49:  "War  is  the  exercise  of  the  interna- 
tional right  of  action,  to  which,  from  the  nature  of  the  thing  and  the 
absence  of  any  common  superior  tribunal,  nations  are  compelled  to 
have  recourse,  in  order  to  assert  and  vindicate  their  rights." 

Vide  4  Calvo,  Droit  Int.  p.  IG,  where  will  be  found  collected  other 
definitions  of  war. 

2  Grotius,  De  Jure  Belli  ac  Pacis,  I,  1,  2 ;  Byukershoek,  De  Rebus 
Bellicis,  I,  1. 

WiLS.lNT.L.— IG 


242  NATURE    AND    COMMENCEMENT   OF    WAR,  (Cll.   10 

er  definition  of  Gentilis,  that  "war  is  a  properly  conducted 
contest  of  armed  public  forces,"  has  come  to  be  generally  ac- 
cepted for  the  period  of  actual  hostilities.^ 

Dr.  Lieber,  in  18G3,  in  the  Instructions  for  the  Government 
of  Armies  of  the  United  States  in  the  Field,  stated: 

"20.  Public  war  is  a  state  of  armed  hostility  between  sov- 
ereign nations  or  governments.  It  is  a  law  and  requisite  of 
civilized  existence  that  men  live  in  political,  continuous  so- 
cieties, forming  organized  units,  called  states  or  nations, 
whose  constituents  bear,  enjoy,  and  sufifer,  advance  and  ret- 
rograde, together,  in  peace  and  in  war." 

"25.  In  modern  regular  wars  of  the  Europeans,  and  their 
descendants  in  other  portions  of  the  globe,  protection  of  the 
inoffensive  citizen  of  the  hostile  country  is  the  rule ;  privation 
and  disturbance  of  private  relations  are  the  exceptions."  * 

There  may  be  a  use  of  force  by  one  state  against  another 
without  a  state  of  war,  as  in  the  case  of  reprisals  or  the  use 
of  force  to  protect  national  interests.  Conceivably  there  may 
be  a  state  of  war  without  the  use  of  force,  if  a  state  should 
declare  war  against  another  state,  and,  before  an  actual  en- 
gagement of  the  forces  had  occurred,  difficulties  should  be  sat- 
isfactorily adjusted  and  peace  should  be  restored. 

To  protect  the  rights  of  all,  it  is  most  essential  to  know 
when  a  state  of  war  exists,  while  the  question  whether  any 
engagement  of  the  forces  has  taken  place  may  be  of  little  in- 
terest, except  from  a  military  point  of  view.  The  existence 
of  a  state  of  war,  whether  or  not  force  is  actually  used,  en- 
tails obligations  upon  neutrals  and  gives  belligerents  rights 
which  do  not  exist  in  time  of  peace.  To  make  clear  the  time 
at  which  the  rights  and  obligations  consequent  upon  a  state 
of  war  arise,  it  is  now  common,  and  by  the  Hague  Conven- 
tion of  1907  obligatory,  to  issue  a  declaration  of  war. 

3  See  Note  1  above.  *  Appendix,  p.  491. 


f5  96)  KINDS   OF   WAR.  243 


KINDS    OF   W^AR. 

96.    Wars  are  variously  classified  according  to  the  purpose  of 
the  classification: 

(a)  For    descriptive   purposes,    as   offensive    or   defensive;    as 

public,  private,  or  mixed  wars;  as  religious,  political, 
etc.;  as  international  or  civil. 

(b)  For  purposes  of  international  laxir,  as  \car  in  the  material 

sense,  or  as  w^ar  in  the  legal  sense. 

(a)  It  is  very  difficult  to  distinguish  in  fact  an  ofifensive  war 
from  a  defensive.  Prompt  action  on  the  offensive  may  be 
the  most  effective  defense.  The  classifications  of  wars  some- 
times given  in  early  treatises  as  public  or  private,  religious  or 
political,  etc.,  easily  become  confused  and  are  of  little  value. 

(b)  The  distinction  between  war  in  the  material  sense^  and 
war  in  the  legal  sense*^  is  frequently  recognized  in  practice 
particularly  in  cases  of  insurrection,  in  distinction  from  war 
between  states.  The  political  department  of  the  government 
may  defer  recognition  of  a  fact  of  which  the  military  depart- 
ment is  obliged  to  take  cognizance.  If  a  state  is  in  danger,  it 
is  the  business  of  the  military  forces  to  afford  protection.  The 
commander  in  chief  may  call  upon  the  military  forces  to  per- 
form service  in  behalf  of  the  state,  while  the  right  to  declare 
war  may  be,  as  in  the  United  States,  a  function  of  another 
branch  of  government. 

5  There  are  many  grades  of  conflict.  At  a  point  between  the 
struggle  of  state  with  state  and  of  individual  with  individual,  there 
is  a  form  of  struggle,  varying  according  to  circumstances,  but  usually 
an  armed  struggle  between  two  organized  groups  or  parties  within 
a  state  for  public  political  ends,  which  is  called  "insurgency."  The 
party  opposing  that  in  possession  of  the  existing  state  organization 
is  usually  regarded  as  rebelling  against  the  state,  and  is  called  "in- 
surgent." Wilson,  Insurgency,  U.  S.  Naval  War  College  Publications, 
1901 ;  Rougier,  Guerres  Civiles  et  le  Droit  des  Gens,  17 ;  The  Three 
Friends,  166  U.  S.  1,  17  Sup.  Ct.  495,  41  L.  Ed.  897;  Underbill  v. 
Hernandez,  168  U.  S.  250,  18  Sup.  Ct.  83,  42  L.  Ed.  456. 

For  definition  of  other  classes  of  war,  vide  1  Halleck,  Int.  Law,  c. 
16;    Calvo,  Droit  Int.  §§  18G6-18S4,  inclusive. 

6  The  existence  of  war  in  the  legal  sense  is  determined  by  the  polit- 
ical department  of  the  government.  The  Pedro,  175  U.  S.  .354,  20 
Sup.  Ct.  138,  44  L.  Ed.  195;  The  Bueua  Ventura,  175  U.  S.  384,  20 
Sup.  Ct.  148,  44  L.  Ed.  206. 


244  NATURE   AND   COMMENCEMENT   OF   WAR.  (Cll.  10 

While  the  Hag-ue  Convention  Relative  to  the  Opening  of 
Hostilities  provides  that  hostilities  should  not  take  place  with- 
out previous  declaration,  the  convention  is  binding  only  upon 
signatory  powers.  In  case  of  a  revolution  within  the  territory 
of  a  signatory  state,  the  established  state  would  ordinarily  be 
reluctant  to  declare  war,  as  this  would  give  full  belligerent 
status  to  the  revolutionary  party.  It  may  be  necessary  for  a 
state  whose  interests  are  involved,  because  of  proximity  or 
from  other  reasons,  to  recognize  that  war  in  the  material  sense 
actually  exists. 

OBJECT  OF  WAR. 

97.   Tlie  object  of  vtrar  may  be  considered  from  two  points  of 
vieTO': 

(a)  From  the  political  point  of  view,  the  object  is  to  attain 

tbe   end   of  tbe   state. 

(b)  From  the  military  point  of  viexp,  the  object  is  to  secure 

the  submission  of  the  enemy. 

(c)  By  the   Hague   Convention  of   1907  the  use   of  force  for 

the  recovery  of  contract  debts  is  in  general  prohibited. 

(a)  The  political  object  of  the  war  may  vary  widely  in  char- 
acter, and  may  change  with  the  progress  of  the  hostilities.  A 
war  undertaken  for  the  defense  of  a  state  may  be  continued  to 
secure  indemnity. 

(b)  The  military  object  of  the  war  is  to  secure  the  submis- 
sion of  the  enemy  with  the  least  possible  sacrifice  of  life  and 
property. 

(c)  In  a  communication  of  the  Foreign  Minister  of  the  Ar- 
gentine Republic,  Mr.  Drago,  transmitted  to  the  Department 
of  State  of  the  United  States  in  1902,  a  protest  was  made 
against  the  use  of  force  for  the  collection  of  contract  debts. '^ 
This  question  became  one  for  consideration  of  the  Second 
Hague  Peace  Conference  in  1907,  and  the  Convention  Re- 
specting the  Limitation  of  the  Employment  of  Force  for  the 
Recovery  of  Contract  Debts  provided  : 

"Article  I.  The  contracting  powers  agree  not  to  have  re- 
course to  armed  force  for  the  recovery  of  contract  debts  claim- 

7  Foreign  Relations  U.  S.  1902,  p.  7. 


§  98)  COMMENCEMENT   OF   WAR.  245 

ed  from  the  government  of  one  country  by  the  government  of 
another  country  as  being  due  to  its  nationals. 

"This  undertaking  is,  however,  not  apphcable  when  the 
debtor  state  refuses  or  neglects  to  reply  to  an  offer  of  arbitra- 
tion, or,  after  accepting  the  offer,  prevents  any  'compromis' 
from  being  agreed  on,  or,  after  the  arbitration,  fails  to  submit 
to  the  award." 

COMMENCEMENT  OF  AVAR. 

98.    (a)    .War    in   the    material    sense    may    commence    -witliont 
previous    declaration, 
(b)    'War   in   tlie    legal   sense    should    not    commence    xi^itliout 
previous  declaration. 

(a)  The  existence  of  war  in  the  material  sense  is  evident  in 
the  use  of  force  by  the  parties,  provided  it  amounts  to  a  pub- 
lic armed  contest. 

Hall  states  the  opinion  commonly  held  at  the  end  of  the 
nineteenth  century:  "On  the  threshold  of  the  special  laws  of 
war  lies  the  question  whether,  when  a  cause  of  war  has  arisen, 
and  when  the  duty  of  endeavoring  to  preserve  peace  by  all  rea- 
sonable means  has  been  satisfied,  the  right  to  commence  hos- 
tilities immediately  accrues,  or  whether  it  is  necessary  to  give 
some  preliminary  notice  of  intention.  A  priori  it  might  hardly 
be  expected  that  any  doubt  could  be  felt  in  the  matter.  An 
act  of  hostility,  unless  it  be  done  in  the  urgency  of  self-preser- 
vation or  by  way  of  reprisal,  is  in  itself  a  full  declaration  of 
intention.  Any  sort  of  previous  declaration,  therefore,  is  an 
empty  formality,  unless  an  enemy  must  be  given  time  and  op- 
portunity to  put  himself  in  a  state  of  defense ;  and  it  is  need- 
less to  say  that  no  one  asserts  such  quixotism  to  be  obliga- 
tory." 

(b)  Formerly  war  in  the  legal  sense  might  begin  without 
declaration,  and  most  of  the  wars  in  the  eighteenth  and  nine- 
teenth centuries  began  without  declaration. 

Of  the  143  wars  between  the  years  1700  and  1900  there 
seem  to  have  been  only  about  20  formal  declarations,  and 
most  of  these  were  subsequent  to  the  actual  commencement  of 
hostilities.     In  a  few  cases  war  followed  an  ultimatum.     In 


246  NATURE    AND   COMMENCEMENT   OF   WAR.  (Ch.   10 

certain  instances  the  relations  between  the  states  were  so 
strained  that  war  was  the  natural  sequence.  In  wars  with 
savages,  uncivilized  peoples,  insurgents,  or  revolutionists,  there 
have  been  conditions  which  made  declaration  unnecessary. 


DECLARATION   OF   W^AR. 

99.    A   declaration   of  \irar  is  now  in  general   required  before 
tlie  opening  of  hostilities  betvireen  states. 

In  early  days  wars  were  commenced  with  great  formality,  a 
herald  often  proceeding  to  the  frontier  and  making  formal  an- 
nouncement and  receiving  formal  reply.  The  early  practice  is 
set  forth  in  Deuteronomy,  xx,  as  follows : 

"10.  When  thou  comest  nigh  unto  a  city  to  fight  against  it, 
then  proclaim  peace  unto  it. 

"11.  And  it  shall  be,  if  it  make  thee  answer  of  peace,  and 
open  unto  thee,  then  it  shall  be,  that  all  the  people  that  is  found 
therein  shall  be  tributaries  unto  thee,  and  they  shall  serve  thee. 

"12.  And  if  it  will  make  no  peace  with  thee,  but  will  make 
war  against  thee,  then  thou  shalt  besiege  it." 

For  many  centuries  the  formal  declaration  of  war  was  in- 
trusted to  the  priestly  class.  Such  declarations  were  made 
prior  to  the  opening  of  hostilities.  This  custom  was  common 
among  the  Greeks  and  Romans.^  Among  the  Romans  in  the 
early  times  thirt}'-one  days  were  allowed  in  which  the  offend- 
ing state  might  render  satisfaction.  The  constitution  of  Fred- 
eric Barbarosa  of  1187  granted  three  days'  notice  of  hostili- 
ties. Letters  of  defiance  were  common  in  mediaeval  times. 
The  Golden  Bull  of  Charles  IV,  1356,  requires  that  "three 
natural  days"  intervene  between  the  "challenge  of  defiance" 
and  the  beginning  of  hostilities.^ 

In  the  fifteenth  century  the  custom  of  sending  heralds  to 
declare  war  seems  to  have  been  common.  These  were  dis- 
patched by  the  Swedish  king  to  declare  war  on  Denmark  so 
late  as  1657.^°     The  practice  of  issuing  an  ultimatum  before 

8  Cicero,  De  Officiis,  I,  II ;   Livy,  I,  32. 

9  Henderson,  Historical  Documents  of  the  Middle  Ages,  p.  247. 

10  2  Twiss,  p.  61. 


§  99)  DECLARATION    OF   WAR.  247 

engaging  in  war  received  sanction  of  such  writers  as  Bynker- 
shoek.  The  ambition  for  overseas  territory,  the  development 
of  maritime  warfare,  the  issue  of  letters  of  marque  and  re- 
prisal, and  the  general  change  in  the  character  of  international 
relations  led  to  the  weakening  of  the  claim  for  a  prior  dec- 
laration in  order  to  make  acts  of  war  legal.  It  was  formally 
declared  in  the  decision  of  Lord  Stowell  in  the  case  of  The 
Boedes  Lust,  1803,  that  this  ship,  embargoed  before  the  dec- 
laration of  war,  was  by  virtue  of  a  subsequent  war  liable  to 
condemnation :  "If  the  matter  in  dispute  had  terminated  in 
reconciliation,  the  seizure  would  have  been  converted  into  a 
mere  civil  embargo.  That  would  have  been  the  retroactive 
effect  of  that  course  of  circumstances.  On  the  contrary,  if 
the  transactions  end  in  hostility,  the  retroactive  effect  is  di- 
rectly the  other  way.  It  impresses  the  direct  hostile  character 
upon  the  original  seizure."  ^^ 

Declaration  of  war  came  during  the  eighteenth  and  nine- 
teenth centuries  to  be  regarded  merely  as  a  convenient  method 
for  determining  when  the  war  status  should  be  held  to  exist, 
and  most  of  the  wars  of  recent  years  have  begun  without  dec- 
laration.^- 

By  a  proclamation  of  April  22.  1898,  the  President  of  the 
United  States  declared  the  north  coast  of  Cuba  blockaded.  It 
was  not  till  April  26,  1898,  that  a  declaration  of  war  was  is- 
sued, which  proclaimed  that  war  with  Spain  had  existed  since 
April  21,  1898.^-'* 

The  first  act  of  hostilities  between  Russia  and  Japan  in  1904 
was  upon  February  6th,  but  it  was  not  till  February  10th  that 
the  declarations  of  war  were  published.    Neither  the  Russian 

11  5  C.  Rob.  245:    Scott,  460. 

12  J.  F.  Maurice.  Hostilities  witliout  Declaration  of  War. 

"The  practice  of  a  formal  proclamation  before  recognizing  an  ex- 
isting war  and  capturing  enemy's  property  has  fallen  into  disuse  in 
modern  times,  and  actual  hostilities  may  determine  the  date  of  the 
commencement  of  war,  though  no  proclamation  may  have  been  issued, 
no  declaration  made,  and  no  action  of  the  legislative  branch  of  the 
government  had."  The  Buena  Ventura  (D.  C.)  87  Fed.  927;  Id.,  175 
U.  S.  3S4,  20  Sup.  Ct.  148.  44  L.  Ed.  206. 

13  Foreign  Relations  U.  S.,  189S,  p.  772, 


248  NATURE   AND   COMMENCEMENT   OF   WAR.  (Ch.   10 

nor  the  Japanese  declaration  fixes  the  date  at  which  the  war 
began/* 

By  far  the  greater  number  of  the  wars  in  recent  years  have 
been  carried  on  and  concluded  without  declaration.  A  con- 
siderable number  have  been  declared  to  exist  after  hostilities 
had  already  begun,  A  very  few  had  been  declared  in  advance 
of  hostilities.  Apparently  there  were  about  10  prior  declara- 
tions in  nearly  150  wars  since  1700. 

The  uncertainties  in  regard  to  the  practice  of  declaration  of 
war  led  the  Second  Hague  Conference  in  1907  to  declare  "that 
it  is  important  that  the  existence  of  a  state  of  war  should  be 
notified  without  delay  to  neutral  powers."  To  this  end  the 
conference  agreed  upon  a  Convention  Relative  to  the  Opening 
of  Hostilities,  in  which  it  is  declared  that : 

"Article  I.  The  contracting  powers  recognize  that  hostili- 
ties between  themselves  must  not  commence  without  previous 
and  explicit  warning,  in  the  form  either  of  a  reasoned  declara- 
tion of  war  or  of  an  ultimatum  with  conditional  declaration  of 
war." 

DATE  OF  COMMENCEMENT  OF  WAR. 

100.    (a)    "War  in  tlie  material  sense  commences  on  the  date  of 
the  first  act  of  public  hostilities, 
(b)    .War  in  the  legal  sense  commences  from  the  date  named 
in  the  declaration,  and  in  absence  of  declaration  from 
the  first  act  of  public  hostilities. 

In  modern  times  the  date  of  the  commencement  of  war  has 
become  a  matter  of  great  importance.  The  existence  of  war 
imposes  obligations  upon  neutral  states.  If  these  obligations 
are  not  regarded,  a  state  may  become  liable  to  pay  indemnity. 
The  belligerent  may  also  exercise  certain  rights  over  neutrals, 
as  by  visit  and  search  of  vessels.  Certain  articles  of  trade, 
which  in  time  of  peace  may  be  carried  freely,  become  liable  to 
capture  after  the  outbreak  of  hostilities.  The  relationship  be- 
tween citizens  of  the  belligerent  states  is  changed.  Indeed, 
the  legal  effects  of  the  change  from  peace  to  war  are  so  far- 
reaching  that  it  is  essential  that  the  date  of  such  change  be 
definitely  determined  or  easily  determinable. 

1*  Takahashi,  Russo-Japanese  War,  p.  6. 


§  100)  DATE    OF   COMMENCEMENT    OF   WAR.  249 

(a)  In  case  of  the  existence  of  war  in  the  material  sense, 
it  is  essential  that  persons  affected  by  the  existence  of  hostih- 
ties,  whether  of  the  belHgerent  or  of  other  states,  should  know 
at  what  date  the  relations  of  peace  are  superseded  by  those  of 
war.  In  absence  of  any  official  utterance  to  the  contrary,  the 
first  act  of  public  hostilities  may  be  regarded  as  the  commence- 
ment of  the  war. 

For  states  that  have  no  part  in  the  war,  the  war  commences 
from  the  period  of  their  own  formal  recognition  of  the  exist- 
ence of  belligerency,  or  from  the  time  of  such  public  act  by  the 
state  party  to  the  hostilities  as  is  in  the  nature  of  the  recogni- 
tion of  the  existence  of  war,  as  by  the  proclamation  of  block- 
ade by  a  state.  ^^ 

(b)  Between  the  contracting  states,  which  include  practical- 
ly all  the  leading  states  of  the  world,  the  Hague  Convention 
of  1907  Relative  to  the  Opening  of  Hostilities  endeavored  to 
make  definite  the  date  of  the  opening  of  hostilities.  This  con- 
vention recognizes  that  hostilities  should  not  commence  be- 
tween these  states  without  previous  declaration.  It  is  not 
specified  that  there  shall  be  any  particular  time  between  the 
declaration  and  commencement  of  hostilities.  Article  II  pro- 
vides that:  "The  existence  of  a  state  of  war  must  be  notified 
to  the  neutral  powers  without  delay,  and  shall  not  take  effect 
in  regard  to  them  until  after  the  receipt  of  a  notification, 
which  may,  however,  be  given  by  telegraph.  Neutral  powers, 
nevertheless,  cannot  rely  on  the  absence  of  notification,  if  it 
is  clearly  established  that  they  were  in  fact  aware  of  the  ex- 
istence of  a  state  of  war." 

This  convention  does  not,  however,  make  any  provision  in 
regard  to  the  commencement  of  a  war  with  a  party  not  a  sig- 
natory of  the  convention,  nor  for  the  commencement  of  a  civil 
war,  and  in  such  cases  the  first  act  of  public  hostilities  must 
be  taken  as  the  date  of  the  commencement  of  the  war. 

15  President  Lincoln's  proclamation  of  blockade  April  19,  1861,  was 
regarded  as  the  date  of  the  beginning  of  the  American  Civil  War. 
The  Protector,  12  Wall.  700.  20  L.  Ed.  4G3 ;  The  Prize  Cases,  2  Black, 
635,  17  L.  Ed.  459;  The  Pedro,  175  U.  S.  354,  20  Sup.  Ct.  138,  44  L. 
Ed.  195. 


250  BELLIGERENT   OPERATIONS.  (Ch.   11 


CHAPTER  XI. 

AREA    AND    GENERAL    EFFECT    OF    BELLIGERENT    OPERA- 
TIONS. 

101.  Area. 

102.  General   Effect. 

AREA  OF  BELLIGERENT  OPERATIONS,  t 

101.  The    area    upon    Tpliicli    hostilities    may    be    legitimately 

condncted  inclndes  the  land  and  water  ontside  of  neu- 
tral jurisdiction  and  the  corresponding  aerial  domain. 

Neutral  jurisdiction  is  inviolable,  and  by  the  Hague  Con- 
ventions of  1907  the  belligerent  is  bound  to  respect  this  juris- 
diction.- The  belligerent  is  prohibited  from  performing  any 
proximate  acts  of  war  in  neutral  jurisdiction;  e.  g.,  equipping 
vessels,  establishing  prize  courts,  etc.  With  the  introduction 
of  aerial  navigation  and  communication,  the  area  of  possible 
belligerent  operations  has  been  extended  to  the  atmosphere, 
and  the  regulation  of  the  discharge  of  projectiles  from  bal- 
loons and  of  the  use  of  wireless  telegraph  has  already  begun.* 

GENERAL  EFFECT. 

102.  The  general  effects  of  \ra,T  are: 

(1)  To  break  off  diplomatic  and   other  nonhostile  relations 

of  the  belligerent  states. 

(2)  To  modify  treaty  relations  of  the  belligerent  states. 

(3)  To  modify  the  status  of  persons  within  the  belligerent 

states. 

1  See  Cyc,  same  topic,  under  "War." 

2  Appendix,  Rights  and  Duties  of  Neutral  Powers  in  Case  of  War 
on  Land,  p.  546 ;  Rights  and  Duties  of  Neutral  Powers  in  Naral  War, 
p.  3G3 ;    The  Florida,  101  U.  S.  37,  25  L.  Ed.  898. 

3  Discharge  of  Projectiles  and  Explosives  from  Balloons,  p.  326 ; 
Fauchille,  Le  Regime  Aerien,  8  R.  G.  D.  I.  P.  414 ;  Jurisch,  Grund- 
ziige  des  Luttrechts ;  Int.  Law  Situations,  U.  S.  Naval  War  College, 
1907,  p.  138. 


§  102)  GENERAL   EFFECT.  251 

(4)  To  modify  the  status  of  property  xrithin  the  belligerent 

states. 

(5)  To  change  the  relations  of  belligerents  and  allies  in  ac- 

cord  ivith  the   treaties   of   alliance. 

(6)  To  change   the   relations   of   belligerents    and   states   not 

parties  to  the  war. 

(7)  To  modify  the  relations  of  persons  subject  to  the  juris- 

diction of  states  not   parties  to  the  w^ar  and  the   bel- 
ligerents. 

(1)  Diplomatic  relations  are  frequently  broken  off  before 
the  commencement  of  war,  and  sometimes  as  an  evidence  of 
strained  relations  liable  to  result  in  war.*  On  April  21,  1898, 
the  Spanish  Minister  of  State  sent  to  Mr.  Woodford,  the  Unit- 
ed States  Minister  at  Madrid,  the  following  note : 

"In  compliance  with  a  painful  duty,  I  have  the  honor  to  in- 
form your  excellency  that,  the  President  having  approved  a 
resolution  of  both  Chambers  of  the  United  States  which,  in 
denying  the  legitimate  sovereignty  of  Spain  and  in  threaten- 
ing armed  intervention  in  Cuba,  is  equivalent  to  an  evident 
declaration  of  war,  the  government  of  His  Majesty  has  order- 
ed its  Minister  in  Washington  to  withdraw  without  loss  of 
time  from  the  North  American  territory,  with  all  the  person- 
nel of  the  legation.  By  this  act  the  diplomatic  relations  which 
previously  existed  between  the  two  countries  are  broken  off,  all 
official  communication  between  their  respective  representa- 
tives ceasing,  and  I  hasten  to  communicate  this  to  your  excel- 
lency, in  order  that  on  your  part  you  may  make  such  disposi- 
tions as  seem  suitable." 

To  this  note  Mr.  Woodford  made  immediate  reply  as  fol- 
lows: 

"I  have  the  honor  to  acknowledge  the  receipt  this  morning 
•of  your  note  of  this  date  informing  me  that  the  Spanish  Min- 
ister at  Washington  has  been  ordered  to  withdraw,  with  all  his 
legation  and  without  loss  of  time,  from  North  American  terri- 

4  The  Spanisli  minister  to  the  United  States  asked  for  his  pass- 
ports^ which  were  given  on  April  20,  1898.  War  began  according  to 
proclamation  on  April  21,  1898.  Foreign  Relations  U.  S.  1898,  p.  766. 
Japan  gave  notice  of  the  withdrawal  of  her  diplomatic  representa- 
tive from  Russia  on  February  6,  1904,  and  the  declaration  of  war 
was  issued  on  February  10,  1906.  Takahashi,  Russo-Japanese  War. 
15. 


252  BELLIGERENT   OPERATIONS.  (Cll.  11 

tory.  You  also  inform  me  that  by  this  act  diplomatic  relations 
between  the  two  countries  are  broken  off ;  that  all  official  com- 
munication between  their  respective  representatives  ceases.  I 
have  accordingly  this  day  telegraphed  the  American  consul 
general  at  Barcelona  to  instruct  all  the  consular  representa- 
tives of  the  United  States  in  Spain  to  turn  their  respective  con- 
sulates over  to  the  British  consuls  and  to  leave  Spain  at  once. 
I  have  myself  turned  this  legation  over  to  Her  Britannic  Ma- 
jesty's embassy  at  Madrid.  That  embassy  will  from  this  time 
have  the  care  of  all  American  interests  in  Spain.  I  now  re- 
quest passports  and  safe  conduct  to  the  French  frontier  for 
myself  and  the  personnel  of  this  legation,  I  intend  leaving 
this  afternoon  at  4  o'clock  for  Paris." 

In  any  case  diplomatic  relations  between  belligerents  of  ne- 
cessity come  to  an  end  on  the  outbreak  of  war.  The  care  of 
the  diplomatic  hotel  and  the  general  national  interests  is  usual- 
ly intrusted  to  some  third  power  friendly  to  both. 

(2)  By  the  outbreak  of  war  treaty  relations  between  belli- 
gerents are  modified  according  to  their  nature. 

(a)  Treaties  of  peace  and  alliance  come  to  an  end;  e.  g., 
amity  commerce,  etc. 

(b)  Certain  treaty  obligations  may  be  suspended,  and  revive 
at  close  of  war;  e.  g.,  debts. 

(c)  Treaties  as  to  hostile  relations  become  operative;  e.  g.. 
Convention  as  to  Laws  and  Customs  of  War  on  Land. 

In  accordance  with  article  XXIX  of  the  treaty  of  1902  be- 
tween the  United  States  and  Spain ;  "All  treaties,  agreements, 
conventions  and  contracts  between  the  United  States  and 
Spain  prior  to  the  Treaty  of  Paris  shall  be  expressly  abrogated 
and  annulled,  with  the  exception  of  the  treaty  signed  the  sev- 
enteenth of  February,  1834,  between  the  two  countries,  for 
the  settlement  of  claims  between  the  United  States  of  America 
and  the  government  of  His  Catholic  Majesty,  which  is  con- 
tinued in  force  by  the  present  convention." 

(3)  Persons  within  the  belligerent  jurisdiction  acquire  a 
new  status  depending  upon  allegiance,  conduct,  etc.  (Chapter 
XXIII.) 

(4)  Property  is  liable  to  new  burdens  and  treatment;  e.  g., 
certain  property  must  be  treated  so  far  as  possible  as  in  peace. 


§  102)  GENERAL    EFFECT.  253 

while  other  property  may  be  seized  and  confiscated.  The  place 
and  relationship  of  the  property  may  determine  its  treatment. 
(Chapter  XXIV.) 

(5)  New  oblig'ations  and  duties  may  arise  between  allies  in 
consequence  of  war ;  e.  g.,  through  a  defensive  alliance.^  The 
obligations  and  duties  will  be  determined  by  the  nature  of  the 
alliance.  A  treaty  of  November  3,  1907,  between  the  states 
mentioned  says:  "If  the  integrity  of  Norway  is  threatened  or 
impaired  by  any  power  w^hatsoever,  the  German,  French,  Brit- 
ish, and  Russian  governments  undertake,  on  the  receipt  of  a 
previous  communication  to  this  effect  from  the  Norwegian 
government,  to  afford  to  that  government  their  support,  by 
such  means  as  may  be  deemed  the  most  appropriate,  with  a 
view  to  safeguarding  the  integrity  of  Norway." 

(6)  The  belligerents  are  put  under  certain  restraints  as  to 
their  conduct  within  the  jurisdiction  of  states  not  parties  to  the 
war;  e.  g.,  Hmitation  of  sojourn  of  war  ships  in  neutral  wa- 
ters, etc.  The  neutral  states  are  also  under  certain  new  obli- 
gations;  e.  g.,  as  to  prohibiting  equipment  of  vessels,  etc. 

(7)  The  neutral  state  may  be  responsible  for  certain  acts 
of  persons  within  its  jurisdiction.  There  are  other  acts  not 
involving  the  neutral  state  which  would  be  legitimate  in  time 
of  peace  which  in  time  of  war  are  liable  to  penalty;  e.  g.,  trade 
in  goods  of  the  nature  of  contraband. 

5  "If  by  reason  of  unprovoked  attack  or  aggressive  action,  wherever 
arising,  on  the  part  of  any  other  power  or  powers,  either  contracting 
party  should  be  involved  in  war  in  defense  of  its  territorial  rights 
or  special  interests  mentioned  in  the  preamble  of  this  agreement,  the 
other  contracting  party  will  at  once  come  to  the  assistance  of  its 
ally  and  will  conduct  the  war  in  common  and  make  peace  in  mutual 
agreement  with  it."  Article  2,  Agreement  Great  Britain  and  Japan, 
Aug.  12,  1905,  1  A.  J.  I.  Doc.  Sup.  15. 


254  RIGHTS  AND   OBLIGATIONS   DUIUNG   WAR.  (Cb.  12 

CHAPTER  XII. 
RIGHTS  AND  OBLIGATIONS  DURING  WAR. 

103.  Obligations  of  Belligerents. 

104.  Neutral  Duty  of  Abstention. 

105.  Neutral  Duty  of  Prevention. 

106.  Neutral  Obligation  of  Toleration, 

107.  Neutral  Duty  of  Regulation. 

108.  Civil  Rights  and  Remedies  During  War. 

OBI.IGATIONS   OF  BELLIGERENTS. 

103  "Belligerents  are  bound  to  respect  tlie  sovereign  rights 
of  neutral  pow^ers,  and  to  abstain,  in  neutral  territory 
or  neutral  wraters,  from  any  act  -wliicb  ivould,  if  knoiv- 
ingly  permitted  by  any  power,  constitute  a  violation  of 
neutrality."  i 
Sucb  acts  include: 

(a)  Hostilities  in  neutral  w^aters. 

(b)  Establishing  prize  courts  in  neutral  jurisdiction. 

(c)  Use  of  neutral  wraters  as  military  base. 

Since  the  middle  of  the  nineteenth  century  the  tendency  has 
been  to  throw  more  of  the  burden  of  war  upon  the  belhgerents. 
This  was  recognized  at  the  Second  Ha^-ue  Conference  in  190T, 
as  seen  in  the  following  provisions  of  the  Convention  Concern- 
ing the  Rights  and  Duties  of  Neutral  Powers  in  Naval  War: 

■'Article  I.  Belligerents  are  bound  to  respect  the  sovereign 
rights  of  neutral  powers,  and  to  abstain,  in  neutral  territory 
or  neutral  waters,  from  any  act  which  would,  if  knowingly 
permitted  by  any  power,  constitute  a  violation  of  neutrality. 

"Article  II.  Any  act  of  hostility,  including  capture  and  the 
exercise  of  the  right  of  search,  committed  by  belligerent  war 
ships  in  the  territorial  waters  of  a  neutral  power,  constitutes 
a  violation  of  neutrality  and  is  strictly  forbidden. 

"Article  III.  When  a  ship  has  been  captured  in  the  terri- 
torial waters  of  a  neutral  power,  this  power  must  employ,  if 

1  Hague  Convention,  1907,  Rights  and  Duties  of  Neutral  Powers  in 
Naval  War.  art.  1,  Appendix,  p.  r>c,3. 


§  103)  OBLIGATIONS   OF   BELLIGERENTS.  255 

the  prize  is  still  within  its  jurisdiction,  the  means  at  its  disposal 
to  release  the  prize,  with  its  officers  and  crew,  and  to  intern 
the  prize  crew. 

"If  the  prize  is  not  in  the  jurisdiction  of  the  neutral  power, 
the  captor  government,  on  the  demand  of  that  power,  must  lib- 
erate the  prize,  with  its  officers  and  crew. 

"Article  IV.  A  prize  court  cannot  be  set  up  by  a  belligerent 
on  neutral  territory  or  on  a  vessel  in  neutral  waters. 

"Article  V.  Belligerents  are  forbidden  to  use  neutral  ports 
and  waters  as  a  base  of  naval  operations  against  their  adver- 
saries, and  in  particular  to  erect  wireless  telegraphy  stations 
or  any  apparatus  for  the  purpose  of  communicating  with  the 
belligerent  forces  on  land  or  sea." 

The  Hague  Convention  of  1907  Respecting  the  Rights  and 
Duties  of  Neutral  Powers  and  Persons  in  Case  of  War  on 
Land  provides  that : 

"Article  I.  The  territory  of  neutral  powers  is  inviolable. 

"Article  II.  Belligerents  are  forbidden  to  move  troops  or 
convoys  of  either  munitions  of  war  or  supplies  across  the  ter- 
ritory of  a  neutral  power. 

"Article  III.  Belligerents  are  likewise  forbidden  to: 

"(a)  Erect  on  the  territory  of  a  neutral  power  a  wireless  te- 
legraphy station  or  other  apparatus  for  the  purpose  of  com- 
municating with  belligerent  forces  on  land  or  sea ; 

"(b)  Use  any  installation  of  this  kind  established  by  them 
before  the  war  on  the  territory  of  a  neutral  power  for  purely 
military  purposes,  and  which  has  not  been  opened  for  the 
service  of  public  messages. 

"Article  IV.  Corps  of  combatants  cannot  be  formed  nor 
recruiting  agencies  opened  on  the  territory  of  a  neutral  power 
to  assist  the  belligerents." 

Formerly  some  of  these  acts  were  sometimes  allowed.  Later 
the  burden  of  prevention  of  such  acts  was  thrown  upon  the 
neutral.  The  present  tendency  is  to  throw  the  obligation  of 
refraining  from  such  acts  upon  the  belligerent. 


J56  RIGHTS  AND   OBLIGATIONS   DUUING   WAR.  (Cll.  12 


NEUTRAL  DUTY   OF   ABSTENTION. 

104.    In   general,  the  neutral  state  is  under  obligation  to  re- 
frain from  all  acts  wrhicli  iwoiild  involve  direct  or  in- 
direct participation  in  the  hostilities. 
Such  acts  include: 

(a)  Furnishing  military  assistance. 

(b)  State  loans. 

While  the  belligerent  is  under  oblig-ation  to  respect  the  neu- 
trality of  states  taking  no  part  in  the  war,  such  states  are  un- 
der obligation  to  refrain  from  all  acts  which  would  involve 
participation.  A  state  cannot  be  at  peace,  and  at  the  same 
time  be  engaged  in  the  war,  or  undertake  acts  in  furtherance 
of  the  hostilities. 

(a)  Formerly  it  was  common,  under  treaty  stipulations  or 
other  agreements,  for  a  neutral  to  furnish  troops  or  other 
military  assistance  to  a  belligerent.  This  practice  has  been 
disapproved  by  late  writers,  and  has  been  abandoned  in  prac- 
tice and  prohibited  by  the  Hague  Convention  of  1907.^ 

Similiarly  neutral  states  have  at  the  outbreak  of  war  sold 
arms  or  war  material  from  the  public  supply.  Sale  of  ord- 
nance stores  was  made  by  the  United  States  in  1870  to  per- 
sons who  were  said  to  be  agents  of  the  French  government. 
A  committee  of  the  United  States  Senate  held  these  sales  to 
be  lawful,  saying:  "If  they  had  been  such  agents,  and  if  that 
fact  had  been  known  to  our  government,  or  if,  instead  of 
sending  agents,  Louis  Napoleon  or  Frederick  William  had 
personally  appeared  at  the  War  Department  to  purchase  arms, 
it  would  have  been  lawful  for  us  to  sell  to  either  of  them,  in 
pursuance  of  a  national  policy  adopted  by  us  prior  to  the  com- 
mencement of  hostilities."  ^  Such  a  position  is  now  generally 
opposed,  and  the  Hague  Convention  of  1907  declares  that: 
"The  supply,  in  any  manner,  directly,  or  indirectly,  by  a  neu- 
tral power  to  a  belligerent  power,  of  war  ships,  ammunition, 
or  war  material  of  any  kind  whatever,  is  forbidden."  *     This 

2  Hague  Convention,  1907,  Rights  and  Duties  of  Neutral  Powers 
and  Persons  in  Case  of  War  on  Land,  art.  v,  Appendix,  p.  546. 

3  7  ]\roore,   97.'^>. 

*  Rights  and  Duties  of  Neutral  Powers  in  Naval  War,  art.  VI,  Ap- 
pendix. )).  TtCA. 


§  104)  NEUTRAL    DUTY    OF   ABSTENTION.  257 

does  not  imply  any  obligation  of  the  neutral  to  interfere  with 
the  ordinary  traffic  of  its  nationals  in  war  supplies. 

(b)  The  former  practice  of  making  or  guaranteeing  loans 
by  neutral  states  in  aid  of  belligerents  is  now  generally  re- 
garded as  contrary  to  the  principles  of  neutrality.  The  mak- 
ing of  loans  by  private  citizens  is  not  prohibited.''  In  1904: 
the  United  States  decided  it  undesirable  to  become  remotely 
connected  with  an  attempt  to  raise  subscriptions  through  men 
enlisted  in  the  navy.® 

By  the  Hague  Convention  of  1907  Respecting  the  Rights 
and  Duties  of  Neutral  Powers  and  Persons  in  Case  of  War 
on  Land  (article  18)  it  was  declared  that  "supplies  furnished 
or  loans  made  to  one  of  tlie  belligerents,  provided  that  the 
person  who  furnishes  the  supplies  or  who  makes  the  loans 
lives  neither  in  the  territory  of  the  other  party  nor  in  the  ter- 
ritory occupied  by  him,  and  that  the  supplies  do  not  come  from 

6  Appendix,  art.  XVIII,  p.  548. 

6  "Mr.  Hay  to  Mr.  Takahira: 

"Department  of  State,  Washington,  May  5,  1904. 

"My  D<^ar  Mr.  Minister:  In  a  communication  dated  the  14th  ultimo 
the  Secretary  of  the  Navy  inclosed  a  letter  from  the  commandant  of 
the  Mare  Island  Navy  Yard,  transmitting  copies  of  circulars  received 
in  an  envelope  from  the  consulate  general  of  Japan  at  New  York 
City,  addressed  'to  the  Japanese  Serving  in  the  United  States  Navy,' 
soliciting  subscriptions  to  Japanese  bonds,  contributions  to  the  relief 
fund  for  Japanese  soldiers  and  sailors,  and  in  aid  of  the  Red  Cross 
Society  of  Japan.  In  view  of  the  President's  proclamation  of  neutral- 
ity, the  Secretary  of  the  Navy  asked  whether  the  circulars  should  be 
forwarded. 

"While  Japanese  in  the  United  States  doubtless  have  a  right  to 
subscribe  to  Japanese  bonds,  or  to  contribute  to  relief  and  Red  Cross 
Society  funds  of  Japan,  yet  it  is  undesirable  that  such  contributions 
should  be  sought  through  the  naval  official  channels  of  this  govern- 
ment. 

"Pursuant  to  these  views,  the  commandant  of  the  Mare  Island 
Navy  Yard  has  been  instructed  not  to  forward  to  the  Japanese  serv- 
ing in  the  United  States  any  circulars  of  the  character  above  de- 
scribed. 

"I  now  bring  the  matter  to  your  attention,  with  the  request  that 
3'ou  will  inform  the  consular  officers  of  Japan  in  the  United  States 
of  the  attitude  of  this  government  in  the  matter. 

"I  am,  etc.,  John  Hay." 

Foreign  Relations  U.  S.  1904,  p.  427. 

TVlLS.lNT.L. — 17 


258  RIGHTS  AND   OBLIGATIONS   DURING  WAR.  (Ch.  12 

these  territories,"  should  not  be  considered  acts  which  would 
deprive  the  neutral  person  of  the  right  to  be  treated  as  a  neu- 
tral. 

NEUTRAL  DUTY  OF  PREVENTION. 

105.  The  neutral  state  is  under  obligation  to  use  "the  means 
at  its  disposal"  to  prevent  certain  acts,  both  on  the 
part  of  its  oxp^n  nationals  and  on  the  part  of  the  bel- 
ligerents. 

The  degree  of  care  which  a  neutral  should  use  to  prevent 
acts  which  would  be  in  violation  of  neutrality  cannot  always 
be  determined.  The  interpretation  of  the  term  "due  diligence" 
has  given  rise  to  much  difference  of  opinion.'^  The  interpre- 
tation adopted  in  the  award  of  the  Geneva  Convention  of  1871 
was  that :  "The  due  diligence  referred  to  in  the  first  and  third 
of  the  said  rules  ought  to  be  exercised  by  neutral  governments 
in  exact  proportion  to  the  risks  to  which  either  of  the  bellig- 
erents may  be  exposed  from  a  failure  to  fulfil  the  obligations 
of  neutrality  on  their  part." 

A  neutral  state  is  under  obligation  not  to  allow  its  territory 
to  be  violated  and  not  to  allow  it  to  be  used  for  belligerent 
purposes,  as  by  the  establishing  of  a  wireless  telegraph  station 
or  the  use  of  one  established  by  the  belligerent  before  the  war 
for  military  purposes.^ 

"A  neutral  government  is  bound  to  employ  the  means  at  its 
disposal  to  prevent  the  fitting  out  or  arming  of  any  vessel 
within  its  jurisdiction  which  it  has  reason  to  believe  is  intended 
to  cruise,  or  engage  in  hostile  operations,  against  a  power 
with  which  that  government  is  at  peace.  It  is  also  bound  to 
display  the  same  vigilance  to  prevent  the  departure  from  its 
jurisdiction  of  any  vessel  intended  to  cruise,  or  engage  in 
hostile  operations,  which  had  been  adapted  entirely  or  partly 
within  the  said  jurisdiction  for  use  in  war."  "  In  general,  a 
neutral  state  is  bound  to  exercise  due  care,  "such  surveillance 
as  the  means  at  its  disposal  allow,"  to  prevent  the  violation  of 

7  7  Moore,  pp.  1053-1076.  See,  also,  1  Moore,  Int.  Arbitrations, 
572  et  seq. ;    4  Id.,  4057  et  seq. 

8  Hague  Convention,  1907,  Rights  and  Duties  of  Neutral  Powers 
and  Persons  in  Case  of  War  on  Land,  arts.  I-III,  Appendix,  p.  546. 

»  Id.,  Rights  and  Duties  of  Neutral  Powers  in  Naval  War,  art. 
VIII,  Appendix,  p.  564. 


§  105)  NEUTRAL    DUTT   OF   PREVENTIOK.  259 

its  neutrality,  and  the  use  of  such  means  of  prevention  cannot 
be  considered  an  unfriendly  act.^" 

There  have  been  many  claims  made  as  to  what  acts  a  neu- 
tral was  bound  to  prevent.  Before  the  nineteenth  century, 
the  neutral  state  had  not  many  rights,  and  it  had  not  many 
duties.  Belligerents  made  captures  in  neutral  waters  during 
the  wars  at  the  end  of  the  eighteenth  century.  In  1814,  dur- 
ing the  war  between  the  United  States  and  Great  Britain,  the 
American  privateer  General  Armstrong  was  after  resistance 
captured  by  the  British  in  the  Portuguese  harbor  of  Fayal. 
The  United  States  made  claims  against  Portugal.  At  length, 
in  1852,  Louis  Napoleon,  as  arbitrator,  decided  that,  although 
the  attack  by  the  British  constituted  violation  of  neutrality, 
the  American  vessel  should  not  have  resisted,  but  should  have 
demanded  Portuguese  protection.^ ^ 

The  attacks  by  one  belligerent  upon  the  vessels  of  the  other 
in  Korean  and  Chinese  harbors  during  the  Russo-Japanese 
war  have  given  rise  to  much  discussion.  Korea,  like  Manchu- 
ria, is  generally  regarded  as  having  been  through  exceptional 
circumstances  within  the  area  of  hostilities,  though  neither, 
strictly  speaking,  was  under  the  sovereignty  of  the  belligerent 
at  the  time  of  the  war.  The  capture  of  the  Russian  destroyer 
Ryeshitelni  by  Japanese  destroyers  in  the  Chinese  harbor  of 
Chifu  is  not  on  the  same  basis.  Japan  had  agreed  to  respect 
the  neutrality  of  China.  The  accounts  of  the  case  vary ;  but  the 
general  opinion  seems  to  be  that  the  action  of  the  Japanese 
was  in  excess  of  proper  belligerent  rights,  and  that  it  consti- 
tuted a  violation  of  neutrality.'^* 

10  Id.  arts.  XV-XVI,  Appendix,  p.  565. 

112  Moore,  Int.  Arbitrations,  1071. 

12  The  Japanese  government  issued  a  note  justifying  this  action, 
which  said:  "The  Japanese  government  has  no  intention  of  disre- 
garding the  neutrality  of  China  so  long  as  it  is  respected  by  Russia; 
but  they  cannot  consent  that  Russian  vs^arships,  as  the  result  of  bro- 
ken engagement  and  violated  neutrality,  shall,  unchallenged,  find  In 
the  harbors  of  China  a  safe  refuge  from  capture  or  destruction." 
Takaha.shi  says  that:  "He  firmly  believes  that  the  peculiar  disposition 
of  Chefoo  amply  justified  the  conduct  of  the  Japanese,  where  the 
naval  operations  made  it  entirely  impossible  to  deal  with  the  Ryeshi- 
telni in  the  same  way  as  with  the  Mandjur  at  Shanghai,  and  that  a 
belligerent  is  entitled  by  virtue  of  jus  angaria  to  resort  to  a  decisive 


260  RIGHTS   AND   OBLIGATIONS   DURING   WAR.  (Ch.  12 

In  1862  the  Alabama,  which  had  been  fitted  out  in  England, 
left  Liverpool,  ready  to  receive  warlike  equipment,  but  not 
equipped.  The  Alabama  received  her  equipment  and  crew 
for  the  most  part  outside  of  British  jurisdiction.  The  case 
of  the  Florida,  Georgia,  and  Shenandoah  were  similar.  The 
spoliations  upon  commerce  led  the  United  States  to  claim 
that,  in  permitting  these  vessels  to  fit  out  in  and  depart  from 
British  jurisdiction.  Great  Britain  had  been  remiss  in  the 
performance  of  neutral  duties.  The  claims  were  at  length 
under  the  Treaty  of  Washington  submitted  to  an  arbitration 
tribunal,  which  met  at  Geneva,  December  15,  1871.  The  tri- 
bunal awarded  to  the  United  States  $15,500,000.  It  was  held 
that  Great  Britain  had  not  displayed  "due  diligence"  in  pre- 
venting the  fitting  out  of  these  vessels,  and  that  "due  dili- 
gence" would  be  in  "exact  proportion  to  the  risks  to  which 
either  of  the  belligerents  may  be  exposed  from  failure  to 
fulfill  the  obligations  of  neutrality  on  their  part."  This  inter- 
pretation has  been  regarded  as  putting  a  heavy  burden  upon 
neutrals,  and  it  seems  that  "due  diligence"  should  be  deter- 
mined from  conditions  as  appearing  to  the  neutral,  rather  than 
from  risks  to  the  belligerents,  of  which  a  neutral  can  scarcely 
be  cognizant.^ ^ 

measure  with  such  an  impotent  neutral  state  as  Cliina."  Int.  Law 
Applied  to  tlie  Russo-.Japanese  War,  p.  444. 

"Ttie  occurrence  reflects  no  credit  upon  a  power  whicli  up  to  ttiat 
time  bad  been  careful  to  keep  its  conduct  correct  according  to  tbe 
standards  of  international  law."'  Lawrence,  War  and  Neutrality  in 
the  Far  East  (2d  Ed.)  p.  293. 

"So  far  as  tbe  Ryesbitelni  incident  is  a  question  between  tbe  bel- 
ligerents, it  is  difficult,  on  anj'  construction  of  tbe  case  of  tbe  Gen- 
eral Armstrong,  to  defend  tbe  action  of  Japan,  wbicb  was  clearly 
tbe  aggressor."  Smith  &  Sibley,  Int.  Law  during  Russo-Japanese 
War,  p.  122. 

"The  Japanese  government  refused  to  offer  any  apology,  disavowal, 
or  restitution  for  tbis  gross  violation  of  Chinese  neutrality,  and  it 
must  be  admitted  that  her  conduct  in  this  matter,  althougb  altogether 
exceptional,  constitutes  a  blot  upon  a  record  wbicb  was  otherwise 
remarkably  clean  and  spotless  from  tbe  standpoint  of  international 
law."  Hersbey,  Int.  Law  and  Diplomacy  of  tbe  Russo-Japanese  War, 
p.  263. 

13  Cusbing,  Treaty  of  Wasbiugton;  Bernard,  Neutrality  of  Great 
Britain  during  the  American  Civil  War ;  1  Moore,  Int.  Arbitrations, 
315. 


§  105)         NEUTRAL  DUTY  OF  PREVENTION.  261 

There  is  a  point  where  it  may  be  difficult  to  distinguish 
between  a  legitimate  business  transaction  on  the  part  of  in- 
dividuals and  an  undertaking  which  it  is  the  duty  of  the  neu- 
tral to  prevent.  The  Hague  Convention  of  1907  holds  the 
neutral  under  obligation  to  use  "the  means  at  its  disposal"  to 
prevent  violations  of  its  neutrality  by  its  own  nationals  or  by 
belligerents,  which  seems  a  reasonable  basis  for  estimating 
neutral  liability  and  is  comparable  with  the  standards  of  lia- 
bility under  municipal  law. 

A  neutral  state  is  not  bound  to  prevent  the  export  of  or 
commerce  in  arms  or  war  material  in  the  ordinary  course  of 
trade. 

A  neutral  is,  however,  under  obligations  to  prevent  within 
neutral  jurisdiction  the  recruiting  or  enlistment  of  men  for 
belligerent  service,  though  it  is  not  responsible  in  case  where 
persons  go  separately  to  enlist  in  the  belligerent  service. 

Formerly  the  passage  of  troops  through  belligerent  territory 
was  generally  allowed.  Later  it  was  allowed  under  treaty 
stipulations.  In  1815  the  allied  armies  passed  through  the 
territory  of  Switzerland ;  but  Switzerland  was  practically  un- 
der duress,  and  the  same  government  refused  a  similar  per- 
mission in  1870  to  certain  Alsatians.  In  the  Franco-German 
war  of  1870,  the  German  government  endeavored  to  induce 
the  Belgian  government  to  permit  the  passage  through  Belgian 
territory  of  wounded  Prussians  and  French.  This  was  refer- 
red to  the  French  government,  who  replied  that  it  would  con- 
sider such  act  as  a  violation  of  neutrality.  The  permission 
was  refused,  and  the  Belgian  government  disarmed,  and  de- 
tained as  prisoners,  all  soldiers  of  either  army  that  were 
driven  into  their  territory.  By  the  Hague  Convention  of  1907, 
the  "belligerents  are  forbidden  to  dispatch  troops  or  convoys 
of  either  munitions  of  war  or  supplies  across  the  territory  of 
a  neutral  power,"  and  the  neutrals  are  called  upon  to  prevent 
such  action.^* 

In  general,  a  neutral  is  under  obligation  "to  employ  the 
means  at  its  disposal"  to  prevent  (a)  the  commission  of  hos- 
tilities within  its  jurisdiction;   (b)  the  using  of  its  territory  as 

14  Hague  Convention,  1907,  Rights  and  Duties  of  Neutral  Powers 
and  Persons  in  case  of  War  on  Land,  arts.  II-V,  Appendix,  p.  546. 


262  RIGHTS  AND   OBLIGATIONS   DUIIING   WAR.  (Cll.  12 

a  base ;  (c)  the  fitting-  out  of  hostile  expeditions  within  its 
jurisdiction ;  and  (d)  the  equipping-  of  vessels  for  such  ex- 
peditions. 


NEUTRAL    OBIilGATION    OF    TOLERATION. 

106.  Tlie  neutral  state  is  under  obligation  to  tolerate  in  time 
of  war  interference  Tvhich  Tirould  not  be  allowed  in  time 
of  peace. 

Because  of  the  mere  existence  of  war,  which  is  itself  re- 
garded as  legitimate,  a  neutral  state  is  under  obligation  to 
tolerate  certain  acts  by  the  states  engaged  in  war  which  in 
time  of  peace  would  not  be  allowed.  The  belligerent  claims 
the  right  to  put  his  opponent  beyond  the  power  of  resistance, 
and  in  the  prosecution  of  this  end  claims  the  right  to  prevent 
au}^  action  by  neutrals  which  would  hinder  the  attainment  of 
his  object,  either  by  making  it  possible  for  his  opponent  to 
resist  longer  or  more  effectively.  Such  acts  of  interference 
as  the  neutral  tolerates  are  commonly  classed  under  the  fol- 
lowing heads : 

Visit  and  Search  of  Neutral  Private  Vessels. 

(a)  The  form  of  interference  which  is  most  common  is  that 
of  visit  and  search  of  neutral  private  vessels  on  the  high  seas 
or  within  belligerent  jurisdiction.  In  time  of  peace  a  private 
vessel  upon  the  high  seas  would  be  under  the  jurisdiction  of 
the  state  whose  flag  it  is  entitled  to  carry.  In  time  of  war  the 
belligerents  may  investigate,  in  order  to  learn  what  the  relation 
of  the  vessel  may  be  to  the  war. 

Contraband. 

(b)  Certain  goods,  which  in  time  of  peace  are  articles  which 
a  merchant  vessel  may  carry  freely,  may  from  their  usefulness 
in  war  be  liable  to  seizure. 

Blockade. 

(c)  Ports  open  to  commerce  in  time  of  peace  may  for  mili- 
tary ends  be  closed  in  time  of  war. 

Unneutral  Service. 

(d)  Acts  which  are  allowed  in  time  of  peace  may  become 
liable  to  penalty  if  performed  in  time  of  war. 


§  107)        NEUTRAL  DUTY  OF  REGULATION.  263 

Exercise  of  Military  Authority. 

(e)  The  exercise  of  military  authority  over  neutral  persons 
and  property  may  be  in  the  belligerent's  own  territory,  or  in 
the  time  of  military  occupation  in  the  territory  of  his  opponent, 
or  it  may  be  upon  the  high  seas. 

NEUTRAIi   DUTY   OF   REGUIiATION. 

107.  A  neutral  state  may  during  \5rar  regulate  tlie  conduct  of 
persons  subject  to  its  jurisdiction  and  the  conduct  of 
belligerents  within  its  jurisdiction. 

Neutrality  laws  usually  prescribe  in  detail  the  course  of  con- 
duct which  a  neutral  state  proposes  to  require  from  those 
within  its  jurisdiction  during  war.  These  laws  are  municipal 
in  character,  but  become  obligatory  in  an  international  sense 
when  made  part  of  a  public  neutrality  proclamation.  Such 
laws  are  quite  full,  in  the  United  States  usually  called  the 
"Neutrality  Act,"  ^^  and  in  Great  Britain  usually  called  the 
"Foreign  Enlistment  Act."  ^®  Such  laws  usually  prohibit 
certain  acts  under  penalty,  to  be  inflicted  by  domestic  au- 
thority, and  withdraw  protection  in  case  force  is  used  by  the 
belligerent  to  prevent  certain  actions. ^^ 

15  Rev.  St.  §§  52S1-5291  (U.  S.  Comp.  St.  1901,  pp.  3599-3602). 

16  St.  33  &  34  Vict.  c.  90. 

17  "Every  person,  who,  witliiu  the  territory  or  jurisdiction  of  the 
United  States,  begins  or  sets  on  foot,  or  provides,  or  prepares  the 
means  for,  any  military  expedition  or  enterprise,  to  be  carried  on 
from  thence  against  the  territory  or  dominions  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people,  with  whom  the  United 
States  are  at  peace,  shall  be  deemed  guilty  of  a  high  misdemeanor 
and  shall  be  fined  not  exceeding  three  thousand  dollars  and  impris- 
oned not  more  than  three  years."  Rev.  St.  §  52S6  (U.  S.  Comp.  St. 
1901,  p.  3601). 

The  British  Foreign  Enlistment  Act  of  1870  was  passed  in  pursu- 
ance of  the  report  of  a  royal  commission  appointed  for  that  purpose. 

Section  1  defines  and  punishes  by  fine  and  imprisonment  illegal 
enlistment. 

Section  2  refers  to  military  or  naval  expeditions. 

Section  3  prohibits  the  augmentation  without  license  of  the  war- 
lilje  force  of  any  ship,  etc. 

Section  5:  "Any  person,  who,  within  Her  Majesty's  dominions,  and 
without  the  license  of  Her  Majesty,  (1)  builds,   agrees  to  build  or 


264  RIGHTS   AND   OBLIGATIONS   DURING   WAR.  (Cll.  12 

Neutrality  proclamations  generally  contain  the  regulations 
which  the  neutral  state  proposes  to  enforce  during  war.  Some- 
times these  regard  both  the  relations  of  those  subject  to  the 
jurisdiction  of  the  neutral  state  and  bclli.c^erents,  who  would 
ordinarily  be  granted  exemption  from  its  jurisdiction.  These 
proclamations  usually  prescribe  the  conditions  under  which 
vessels  may  enter,  sojourn,  coal,  etc.,  within  neutral  jurisdic- 
tion, and  regulate  such  other  matters  as  the  state  may  deem 
expedient. 

The  Hague  Conventions  of  1907  regard  it  as  "desirable  that 
the  powers  should  issue  detailed  enactments  to  regulate  the 
results  of  the  attitude  of  neutrality  when  adopted  by  them," 
and  consider  that  it  is  "for  neutral  powers  an  admitted  duty 
to  apply  these  rules  impartially  to  the  several  belligerents." 

Regulations  as  to  Internment  of  Belligerent  Troops. 

In  general  the  troops  of  a  belligerent  may  not  enter  the  land 
area  of  a  neutral. ^^ 

"Art.  XI.  A  neutral  power,  which  receives  on  its  territory 
troops  belonging  to  the  belligerent  armies,  shall  intern  them, 
as  far  as  possible,  at  a  distance  from  the  theater  of  war. 

"It  may  keep  them  in  camps,  and  even  confine  them  in  for- 
tresses or  in  places  set  apart  for  this  purpose. 

causes  to  be  built,  (2)  issues  or  delivers  a  comiuission  to,  (.3)  equips, 
or  (4)  dispatches,  or  causes  or  allows  to  be  dispatched,  any  ship  with 
intent  or  knowledge  or  having  reasonable  cause  to  believe  that  the 
same  shall  or  will  be  employed  in  the  military  or  naval  service  of 
any  foreign  state  at  war  with  any  state  with  which  Her  Majesty  is 
at  peace,  is  declared  thereby  to  offend  against  the  law  of  Great  Brit- 
ain." (An  exception  is  made  in  the  case  of  a  person  who  builds  or 
equips  a  vessel  in  pursuance  of  a  contract  made  before  the  outbreak 
of  war  provided  he  complies  with  certain  conditions  prescribed  in  the 
act.) 

Section  23  empowers  the  Secretary  of  State  to  seize  and  search  and 
detain  a  suspected  ship  until  condemned  or  released  by  process  of  law. 

Section  24  makes  it  the  duty  of  the  local  authority  to  detain  a  sus- 
pected ship,  and  communicate  at  once  the  fact  of  such  detention  to 
the  proper  authority. 

For  provisions  of  other  states,  vide  Pitt-Cobbett,  Cas.  Int.  Law 
(2d  Ed.)  pp.  288-201. 

18  Hague  Convention,  1907,  Rights  and  Duties  of  Neutral  Powers 
and  Per.sons  in  Case  of  War  on  Land,  Art.  II,  Appendix,  p.  546. 


§  107)         NEUTRAL  DUTY  OF  REGULATION.  2G5 

"It  shall  decide  whether  officers  can  be  left  at  liberty  on 
giving  their  parole  not  to  leave  the  neutral  territory  without 
permission." 

"Art.  XIII.  A  neutral  power  which  receives  escaped  prison- 
ers of  war  shall  leave  them  at  liberty.  If  it  allows  them  to 
remain  in  its  territory,  it  may  assign  them  a  place  of  residence. 

"The  same  rule  applies  to  prisoners  of  war  brought  by 
troops  taking  refuge  in  the  territory  of  a  neutral  power."  ^" 

Sick  and  wounded,  brought  into  a  neutral  state,  must  not 
again  take  part  in  the  war.  A  neutral  state  may,  however, 
allow  the  passage  of  hospital  trains  through  its  territory.^" 

Regulations  as  to  Sojourn  of  Belligerent  Vessels  in  Neutral 

Ports. 

"In  absence  of  special  provisions  to  the  contrary  in  the  legis- 
lation of  a  neutral  power,  belligerent  war  ships  are  not  per- 
mitted to  remain  in  the  ports,  roadsteads,  or  territorial  waters 
of  the  said  power  for  more  than  twenty-four  hours,  except  in 
the  cases  covered  by  the  present  convention."  ^^  The  twenty- 
four  hour  rule  had  received  increasing  sanction,  particularly 
since  the  middle  of  the  nineteenth  century,  so  that  it  may  be 
said  to  have  been  generally  accepted,  even  before  the  Hague 
Conference  of  1907.  This  conference  defined  its  application. 
The  neutral  must  notify  belligerent  war  vessels  in  its  ports 
at  the  outbreak  of  war  to  depart  within  the  specified  time, 
which  is  twenty-four  hours,  unless  otherwise  proclaimed  by 
the  neutral.  This  stay  may  be  prolonged  on  account  of  stress 
of  weather  or  need  of  repairs  to  make  the  vessel  seaworthy. 
The  neutral  may  determine  what  repairs  are  necessary  for  this 
purpose.  Twenty-four  hours  are  usually  allowed  between  the 
departure  of  ships  belonging  to  one  belligerent  and  ships  be- 
longing to  the  other.  While  some  neutral  states  had  from 
time  to  time,  even  in  the  eighteenth  century,  prescribed  the 
number  of  belligerent  war  ships  which  might  enter  their  ports, 
a  general  regulation  of  the  number  was  made  at  the  Hague 

10  Id.  arts.  XT,  XIII,  Appendix,  p.  547. 

20  Id.  art.  XIV,  Appendix,  p.  547. 

21  Hap;i7e  Convention,  1007.  Ri^lits  and  Duties  of  Neutral  Powers 
tn  Naval  War,  art.  XII,  Appendix,  p.  5G4. 


266  RIGHTS  AND   OBLIGATIONS   DURING   WAR.  (Cll.  12 

Conference  of  1907,  and  in  the  absence  of  provisions  to  the 
contrary  no  belligerent  may  have  more  than  three  war  ships 
in  a  neutral  port  or  roadstead  at  the  same  time. 

Supplying  Pood  and  fuel. 

While  belligerent  ships  of  war  may  not  use  a  neutral  water 
as  a  base  "for  replenishing  or  increasing  their  supplies  of 
war  material  or  their  armament,  or  for  completing  their 
crews,"  they  are  permitted  to  take  on  supplies  of  food  to 
bring  these  up  to  the  peace  standard.  The  amount  of  fuel 
which  may  be  supplied  in  a  neutral  port  and  the  frequency  of 
the  supply  has  been  much  discussed  since  the  introduction  of 
artificial  means  of  propelling  war  ships.  There  was  no  agree- 
ment upon  this  subject  at  the  time  of  the  Geneva  Arbitration, 
and  neutrality  proclamations  since  that  time  sometimes  make 
no  mention  of  the  matter  and  sometimes  strictly  limit  the 
supply.  The  French  practice  has  generally  been  very  liberal, 
while  the  British  has  tended  toward  greater  stringency.  In 
1904  Great  Britain  interpreted  her  regulations  as  prohibiting 
the  use  of  British  ports  for  coaling  for  the  purpose  of  pro- 
ceeding to  the  seat  of  war,  or  to  any  position  on  the  line  of 
route  for  the  purpose  of  intercepting  neutral  ships  on  suspicion 
of  carrying  contraband,  and  allowed  coal  only  for  the  nearest 
home  port,  or  some  "nearer  named  neutral  destination."  The 
Hague  Convention  of  1907  states : 

"Article  XIX.  Belligerent  war  ships  may  only  revictual  in 
neutral  ports  or  roadsteads  to  bring  up  their  supplies  to  the 
peace  standard. 

"Similarly  these  vessels  may  only  ship  sufficient  fuel  to 
enable  them  to  reach  the  nearest  port  in  their  own  country. 
They  may,  on  the  other  hand,  fill  up  their  bunkers,  built  to 
carry  fuel,  when  in  neutral  countries  which  have  adopted  this 
method  of  determining  the  amount  of  fuel  to  be  supplied. 

"If,  in  accordance  with  the  law  of  the. neutral  power,  the 
ships  are  not  supplied  with  coal  within  twenty-four  hours  of 
their  arrival,  the  permissible  duration  of  their  stay  is  extended 
by  twenty-four  hours. 

"Article  XX.  Belligerent  war  ships  which  have  shipped 
fuel  in  a  port  belonging  to  a  neutral  power  may  not  within 


§  107)        NEUTRAL  DUTY  OF  REGULATION,  267 

the  succeeding  three  months  replenish  their  supply  in  a  port 
of  the  same  power."  -' 

Entrance  of  Price  into  Neutral  Ports. 

The  practice  in  regard  to  the  entrance  of  war  vessels  with 
prize  was  formerly  generally  allowed,  but  neutrality  procla- 
mations of  recent  years  have  more  and  more  generally  pro- 
hibited or  restricted  this  action.  The  entrance  of  prize  under 
a  prize  master  has  been  similarly  prohibited.  Formerly  the 
prize  might  be  left  in  a  neutral  port  pending  adjudication  by 
a  prize  court.  In  some  instances  the  courts  were  even  estab- 
lished within  neutral  jurisdiction.  The  tendency  has  been 
away  from  such  practice,  until  it  was  again  proposed  in  the 
Hague  Conference  of  1907  in  the  following  form: 

"Article  XXIII.  A  neutral  power  may  allow  prizes  to  enter 
its  ports  and  roadsteads,  whether  or  not  under  convoy,  when 
they  are  brought  there  to  be  sequestrated  pending  the  decision 
of  a  prize  court.  It  may  have  the  prize  taken  to  another  of 
its  ports. 

"If  the  prize  is  convoyed  by  a  war  ship,  the  prize  crew  may 
go  on  board  the  convoying  ship. 

"If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at 
liberty." 

The  United  States,  while  adhering  to  the  remainder  of  this 
Convention,  subject  to  interpretation  of  Article  III,  reserved 
and  excluded  Article  XXIII. ^^  The  preceding  articles  of  this 
convention  show  the  generally  accepted  rules : 

"Article  XXL  A  prize  may  only  be  brought  into  a  neutral 
port  on  account  of  unseaworthiness,  stress  of  weather,  or 
want  of  fuel  or  provisions. 

"It  must  leave  as  soon  as  the  circumstances  which  justified 
its  entry  are  at  an  end.  If  it  does  not,  the  neutral  power  must 
order  it  to  leave  at  once;  should  it  fail  to  obey,  the  neutral 
power  must  employ  the  means  at  its  disposal  to  release  it,  with 
its  officers  and  crew,  and  to  intern  the  prize  crew. 

"Article  XXII.  A  neutral  power  must,  similarly,  release  a 
prize  brought  into  one  of  its  ports  under  circumstances  other 
than  those  referred  to  in  article  XXI." 

2  2  Id.  Appendix,  p.  566.  ^^  Id-  Appendix,  p.  .567. 


268  RIGHTS   AND   OBLIGATIONS   DURING  WAR.  CCh.  12 

Internment  of  Vessels. 

Speaking-  of  asylum  to  naval  forces,  Hall,  representing  the 
view  of  the  latter  half  of  the  nineteenth  century,  says:  "Ma- 
rine warfare  so  far  differs  from  hostilities  on  land  that  the 
forces  of  a  belligerent  may  enter  neutral  territory  without  be- 
ing under  stress  from  their  enemy.  Partly  as  a  consequence 
of  the  habit  of  freely  admitting  foreign  public  ships  of  war 
belonging  to  friendly  powers  to  the  ports  of  a  state  as  a  mat- 
ter of  courtesy,  partly  because  of  the  inevitable  conditions  of 
navigation,  it  is  not  the  custom  to  apply  the  same  rigor  of 
precaution  to  naval  as  to  military  forces.  A  vessel  of  war 
may  enter  and  stay  in  a  neutral  harbor  without  special  rea- 
sons; she  is  not  disarmed  on  taking  refuge  after  defeat;  she 
may  obtain  such  repair  as  will  enable  her  to  continue  her  voy- 
age in  safety;  she  may  take  in  such  provisions  as  she  needs, 
and,  if  a  steamer,  she  may  fill  up  with  enough  coal  to  enable 
her  to  reach  the  nearest  port  of  her  own  country;  nor  is  there 
anything  to  prevent  her  from  enjoying  the  security  of  neutral 
waters  for  so  long  as  may  seem  good  to  her.  To  disable  a 
vessel,  or  to  render  her  permanently  immovable,  is  to  assist 
her  enemy;  to  put  her  in  a  condition  to  undertake  offensive 
operations  is  to  aid  her  country  in  its  war.  The  principle  is 
obvious;  its  application  is  susceptible  of  much  variation;  and 
in  the  treatment  of  ships,  as  in  all  other  matters  in  which  the 
ne'utral  holds  his  delicate  scale  between  two  belligerents,  a 
tendency  toward  the  enforcement  of  a  harsher  rule  becomes 
more  defined  with  each  successive  war."  ^*  With  the  opening 
of  the  twentieth  century  the  tendency  toward  internment  of 
belligerent  vessels  seeking  refuge  from  an  enemy  in  a  neutral 
port  became  evident.  The  Russian  vessel  ]\Iandjur  entered  the 
port  of  Shanghai  in  February,  1901,  and  after  considerable 
international  correspondence  was  interned.  Essential  parts 
of  the  machinery  were  removed  and  the  vessel  was  disarmed. 
The  crew  was  also  practically  interned.  Similar  treatment  was 
accorded  the  Russian  vessels  Askold  and  Grosvoi  in  the  same 
port  in  August,  to  the  Tsarevitch  in  Kiachow  by  the  German 
authorities,  to  the  Diana  by  the  French  at  Saigon  in  Septem- 
ber, to  the  Lena  by  the  United  States  at  San  Francisco  in 

24  Int.  Law  (5th  Ed.)  p.  026. 


§  107)        NEUTRAL  DUTY  OF  REGULATION.  269 

September,  and  in  June,  1905,  to  the  fleet  of  Admiral  En- 
guist  at  Manila.  The  same  principle  was  recognized  by  China. 
Thus  Russia  and  Japan  acknowledge  the  principle  which 
Great  Britain,  France,  the  United  States,  and  China  put  in 
practice.  The  Hague  Convention  of  1907  incorporated  this 
principle  into  a  regulation  as  follows : 

"Article  XXIV.  If,  notwithstanding  the  notification  of  the 
neutral  power,  a  belligerent  ship  of  war  does  not  leave  a  port 
where  it  is  not  entitled  to  remain,  the  neutral  power  is  entitled 
to  take  such  measures  as  it  considers  necessary  to  render  the 
ship  incapable  of  taking  the  sea  during  the  war,  and  the  com- 
manding officer  of  the  ship  must  facilitate  the  execution  of 
such  measures. 

"When  a  belligerent  ship  is  detained  by  a  neutral  power,  the 
officers  and  crew  are  likewise  detained. 

"The  officers  and  crew  thus  detained  may  be  left  in  the  ship 
or  kept  either  on  another  vessel  or  on  land,  and  may  be  sub- 
jected to  the  measures  of  restriction  which  it  may  appear 
necessary  to  impose  upon  them.  A  sufficient  number  of  men 
for  looking  after  the  vessel  must,  however,  be  always  left  on 
board. 

"The  officers  may  be  left  at  liberty  on  giving  their  word  not 
to  quit  the  neutral  territory  without  permission."  ^^ 

Other  Regulations. 

A  neutral  may  make  such  further  regulations  of  an  impar- 
tial nature  as  may  be  deemed  expedient.  While  a  neutral 
power  is  not  called  upon  to  regulate  the  use  of  public  or  pri- 
vate telegraph,  yet  it  may  regulate  such  use  in  an  impartial 
manner. ^*^  The  Hague  Convention  of  1907  provides  that : 
"The  contracting  powers  shall  communicate  to  each  other  in 

2  5  Rights  and  Duties  of  Neutral  Powers  in  Naval  War,  Appendix, 
p.  566. 

26  "Article  VIII.  A  neutral  power  is  not  called  upon  to  forbid  or 
restrict  the  use  on  behalf  of  the  belligerents  of  telegraph  or  telephone 
cables  or  of  wireless  telegraphy  apparatus  belonging  to  it  or  to  com- 
panies or  private  individuals. 

"Article  IX.  Every  measure  of  restriction  or  prohibition  taken  by 
a  neutral  power  in  regard  to  the  matters  referred  to  in  articles  VII 
and  VIII  must  be  impartially  applied  by  it  to  both  belligerents. 

"A  neutral  power  must  see  to  the  same  obligation  being  observed 


270  RIGHTS  AND   OBLIGATIONS   DUUING  WAR.  (Cll.  12 

due  course  all  laws,  proclamations,  and  other  enactments  regu- 
lating in  their  respective  countries  the  status  of  belligerent 
war  ships  in  their  ports  and  waters,  by  means  of  a  communica- 
tion addressed  to  the  government  of  the  Netherlands,  and 
forwarded  immediately  by  that  government  to  the  other  con- 
tracting powers."  ^^ 

CIVIL    RIGHTS    AND    REMEDIES    DURING    AVAR. 

108.    As  betw^een  tlie  hostile  parties,  trar  in  general  suspends 
civil  rights  and  remedies. 

Contracts. 

War,  in  general,  suspends  existing  contracts  and  terminates 
the  capacity  to  make  new  contracts.^ ^  Naturally,  also,  it 
makes  the  performance  of  certain  contracts  physically  im- 
possible. 

Agency. 

Agency  is  similarly  conditioned  by  war. 

Insurance. 

In  case  of  insurance,  while  the  policies  may  be  extinguished 
by  war,  the  insured  is  generally  entitled  at  the  close  of  the 
war  to  equitable  value  of  the  policy.^® 

by  companies  or  private  individuals  owning  telegraph  or  telephone 
cables  or  wireless  telegraphy  apparatus." 

Hague  Convention,  1907,  Rights  and  Duties  of  Neutral  Powers  and 
Persons  in  Case  of  War  on  Land,  Appendix,  p.   547. 

2  7  Rights  and  Duties  of  Neutral  Powers  in  War  on  Land,  art. 
XXVII. 

2  8  Scholefield  v.  Eichelberger,  7  Pet.  586,  8  L.  Ed.  793. 

2  9  Mr.  Justice  Bradley  said,  in  the  case  of  N.  Y.  Life  Ins.  Co.  v. 
Statham,  93  U.  S.  24,  23  L.  Ed.  789: 

"We  are  of  the  opinion,  therefore,  first,  that,  as  the  companies 
elected  to  insist  upon  the  condition  in  these  cases,  the  policies  in  ques- 
tion must  be  regarded  as  extinguished  by  the  nonpayment  of  the  pre- 
miums, though  caused  by  the  existence  of  the  war,  and  that  an  action 
will  not  lie  for  the  amount  insured  thereon. 

"Secondly,  that,  such  failure  being  caused  by  a  public  war,  with- 
out the  fault  of  the  assured,  they  are  entitled  ex  aequo  et  bono  to  re- 
cover the  equitable  value  of  the  policies,  with  interest  from  the  close 
of  the  war." 

Fire  insurance.  Semmes  v.  Hartford  Ins.  Co.,  13  Wall.  158,  20  L. 
Ed.  490.     See  Wambaugh,  Cas-es  on  Insurance,  651,  note. 


§  108)  CIVIL    RIGHTS   AND    REMEDIES    DURING    WAR.  271 

Interest  on  Obligations. 

Interest  on  obligations  is  usually  suspended  during  war,  if 
the  parties  are  themselves  in  the  jurisdiction  of  the  hostile 
belligerents,  and  the  creditor  is  not  represented  by  an  agent 
within  the  jurisdiction  of  the  debtor.'" 

Partnership. 

Partnerships,  where  one  partner  is  within  the  jurisdiction 
of  one  belligerent  and  the  other  within  the  jurisdiction  of  the 
other  belligerent,  are  in  general  dissolved. ^^ 

Intercourse  and  Trade. 

Rights  of  intercourse  and  trade  are  in  general  suspended, 
and  when  trade  or  intercourse  is  carried  on  it  is  liable  to  the 
risks  of  war,  without  remedy,  and  sometimes  is  specially  pe- 
nalized. 

Non-Intercourse  Acts. 

Penalties  for  entering  upon  trade  or  other  commercial  re- 
lations with  an  enemy  are  sometimes  prescribed  in  non-inter- 
course acts.  Such  an  act  in  regard  to  dealing  in  Russian  se- 
curities was  passed  during  the  Crimean  War  by  Great  Brit- 
ain,^ ^  and  general  acts  were  passed  by  the  United  States 
Congress  in  1861.^^ 

3  0  Ward  v.  Smith,  7  Wall.  447,  19  L.  Ed.  207. 

31  "In  a  foreign  or  international  war,  from  the  time  it  is  declared 
or  recognized,  all  the  people  in  the  territory  and  subject  to  the  do- 
minion of  each  belligerent,  without  regard  to  their  feelings,  disposi- 
tions, or  natural  relations,  become  in  legal  contemplation,  and  so 
continue  to  the  close  of  hostilities,  the  enemies  of  all  the  people  resi- 
dent in  the  territory  of  the  other  belligerent;  and  all  negotiation, 
trading,  intercourse,  or  communication  between  them,  unless  licensed 
by  the  government,  is  unlawful.  Such  a  war,  as  between  the  citizens 
or  subjects  of  the  respective  belligerents,  ipso  facto  dissolves  all  com- 
mercial partnerships  and  all  contracts  wholly  executory  and  requir- 
ing for  their  continued  existence  commercial  intercourse  or  communi- 
cation ;  and  while  it  does  not  abrogate,  yet  it  suspends,  all  other  ex- 
isting contracts  and  obligations  and  the  remedies  thereon,  and  ren- 
ders all  contracts,  with  rare  exceptions,  entered  into  pending  hostil- 
ities, illegal  and  void."  Small's  Administrator  v.  Lumpkin's  Execu- 
trix, 28  Grat.  (Va.)  832. 

3  2  St.  17  &  18  Vict.  c.  123.  8  3  12  Stat.  255,  404. 


272  RIGHTS   AND   OBLIGATIONS    DUKING   WAR.  (Cll.  12 

Remedies. 

The  courts  of  one  l)clligerent  are  in  general  closed  to  per- 
sons domiciled  within  the  jurisdiction  of  the  other  belliger- 
cnt.3* 

••i*  The  Prize  Cases.  2  Black,  G71,  17  L.  Ed.  459. 

"It  is  certainly  true  that,  as  to  individuals,  their  right  to  sue  in 
the  courts  of  a  belligerent,  or  to  hold  or  enforce  civil  rights,  depends, 
not  on  their  birth  and  native  allegiance,  but  on  the  character  which 
they  hold  at  the  time  when  those  rights  are  sought  to  be  enforced. 
A  neutral,  or  a  citizen  of  the  United  States,  who  is  domiciled  in  the 
enemy's  country,  not  only  in  respect  to  his  property,  but  also  as  to 
his  capacity  to  sne,  is  deemed  as  much  an  alien  enemy  as  a  person 
actually  born  under  the  allegiance  and  residing  within  the  dominions 
of  the  hostile  nation.  This,  indeed,  has  long  been  settled  as  the 
general  law  of  nations,  and  enforced  in  the  tribunals  of  prize,  and 
has  been  latterly  recognized  and  confirmed  in  the  municipal  courts 
of  other  nations.  And  the  same  principle  has  been  applied  to  a  house 
of  trade  established  in  a  hostile  country,  although  the  parties  might 
happen  to  have  a  neutral  domicile ;  the  property  of  the  house  being, 
for  such  purpose,  considered  as  affected  with  the  hostile  character  of 
the  country  in  which  it  is  employed."  Mr.  Justice  Story,  in  case  of 
Society  for  Propagation  of  the  Gospel  v.  Wheeler,  2  Gall.  127,  Fed. 
Cas.  No.  13,156. 


§  110)  PERSONS    DURING    WAR.  273 


CHAPTER  XIII. 

PERSONS  DURING  WAR. 

109.  Persons    within    Belligerent    Jurisdiction. 

110.  Combatants  and  Noncombatants. 

111.  Neutral    Individuals. 

PERSONS   AVITHIN   BELLIGERENT    JURISDICTION. 

109.  Persons   w^ithin  belligerent   jurisdiction   are   in   general 

regarded  as  having  enemy  cliaracter,  and,  if  not  na- 
tionals of  the  enemy  state,  as  liable  to  the  consequences 
of  association  ivith  the  enemy. 

The  simple  fact  of  being  within  belhgerent  jurisdiction 
makes  a  person,  whatever  his  allegiance  and  whatever  his  con- 
duct, liable  to  the  hardships  of  war.^ 

He  may  be  restrained  in  his  liberty,  and  is  liable  to  injury 
consequent  upon  the  legitimate  conduct  of  hostilities ;  i.  e.,  in 
the  time  of  siege  he  might  be  detained  within  the  lines  and 
become  liable  to  the  consequences  of  such  detention,  though 
it  is  customary  to  allow  noncombatants  to  withdraw. 

A  neutral  person,  domiciled  within  belligerent  jurisdiction, 
is  liable  to  an  equable  portion  of  the  war  taxes  and  other  bur- 
dens. His  ships  upon  the  high  seas  may  be  treated  as  enemy 
merchant  ships. 

COMBATANTS  AND  NONCOMBATANTS. 

110.  The  status  of  persons  may  be  determined  by  their  con- 

duct, usually  as  combatant  or  noncombatant. 

In  early  practice  a  state  at  war  regarded  and  treated  all  per- 
sons, wherever  found,  owning  allegiance  to  an  enemy  state,  as 
properly  subject  to  hostile  measures,  such  as  the  deprivation 
of  liberty  or  more  severe  treatment. 

1  General  orders  100,  U.  S.  War  Dept.  April  24,  1863,  No.  21.  See 
Appendix,  p.  491. 

WiLS.lNT.L..— IS 


274  PERSONS    DURING    WAR.  (Ch.   lo 

At  the  present  time  the  fact  of  allegiance  is  to  a  large  ex- 
tent ignored  in  the  time  of  hostilities,  and  the  question  of  war 
status  is  mainly  determined  by  conduct. 

Combatant  status  is  extended  to  those  who  under  govern- 
ment sanction  engaged  either  directly  or  indirectly  in  the  oper- 
ations of  war,  and  under  exceptional  cases  to  those  who  with- 
out government  authorization  defend  themselves  from  bellig- 
erent attack.  The  following  is  the  provision  of  the  Hague 
Convention  of  1907  Respecting  the  Laws  and  Customs  of  War 
on  Land : 

"Chapter  L — The  Qualifications  of  Belligerents. 

"Article  L  The  laws,  rights,  and  duties  of  war  apply  not 
only  to  armies,  but  also  to  militia  and  volunteer  corps  fulfilling 
the  following  conditions : 

"1.  To  be  commanded  by  a  person  responsible  for  his  sub- 
ordinates ; 

"2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a 
distance ; 

"3.  To  carry  arms  openly;   and 

"4.  To  conduct  their  operations  in  accordance  with  the  laws 
and  customs  of  war. 

"In  countries  where  militia  or  volunteer  corps  constitute 
the  army,  or  form  part  of  it,  they  are  included  under  the  de- 
nomination 'army.' 

"Article  IL  The  inhabitants  of  a  territory  which  has  not 
been  occupied,  who,  on  the  approach  of  the  enemy,  spontane- 
ously take  up  arms  to  resist  the  invading  troops  without  hav- 
ing had  time  to  organize  themselves  in  accordance  with  article 
I,  shall  be  regarded  as  belligerents  if  they  carry  arms  openly 
and  if  they  respect  the  laws  and  customs  of  war. 

"Article  IIL  The  armed  forces  of  the  belligerent  parties 
may  consist  of  combatants  and  noncombatants.  In  the  case 
of  capture  by  the  enemy,  both  have  a  right  to  be  treated  as 
prisoners  of  war." 

Similarly  those  regularly  commissioned  for  maritime  war- 
fare are  combatants. 

As,  under  article  II  above,  resistance  to  attack  on  land  may 
be  allowed,  so  on  the  sea  the  officers  and  crew  of  a  merchant 
vessel  who  by  force  defend  themselves  from  attack  are  re- 


§  110)  co:mbatants  and  noncombatants.  275 

garded  as  combatants,  and  if  captured  may  be  treated  as  pris- 
oners of  war. 

The  status  of  combatants  is  not  extended  to  those  who 
without  state  authorization  engage  in  offensive  hostihties,  as 
in  case  a  merchant  vessel  of  one  belhgerent  attacks  another 
merchant  vessel,  or  when  private  persons  engage  in  offensive 
hostilities  on  land.  The  treatment  of  such  persons  may  be 
according  to  the  nature  of  the  act.  If  the  act  is  piratical,  the 
usual  penalty  has  been  hanging.  In  time  of  war  the  strained 
feeling  due  to  hostilities  is  usually  taken  into  consideration. 

Spies  were  formerly  liable  to  summary  treatment,  but  at 
present  their  status  is  well  defined. 

"Chapter  II. — Spies. 

"Article  XXIX.  A  person  can  only  be  considered  a  spy 
when,  acting  clandestinely  or  on  false  pretenses,  he  obtains  or 
endeavors  to  obtain  information  in  the  zone  of  operations  of  a 
belligerent,  with  the  intention  of  communicating  it  to  the  hos- 
tile party. 

"Thus,  soldiers  not  wearing  a  disguise,  who  have  penetrated 
into  the  zone  of  operations  of  the  hostile  army,  for  the  pur- 
pose of  obtaining  information,  are  not  considered  spies.  Sim- 
ilarly, the  following  are  not  considered  spies:  Soldiers  and 
civilians,  carrying  out  their  mission  openly,  intrusted  with  the 
delivery  of  dispatches  intended  either  for  their  own  army  or 
for  the  enemy's  army.  To  this  class  belong  likewise  persons 
sent  in  balloons  for  the  purpose  of  carrying  dispatches  and, 
generally,  of  maintaining  communications  between  the  dif- 
ferent parts  of  an  army  or  a  territory. 

"Article  XXX.  A  spy  taken  in  the  act  shall  not  be  punished 
without  previous  trial. 

"Article  XXXI.  A  spy  who,  after  rejoining  the  army  to 
which  he  belongs,  is  subsequently  captured  by  the  enemy,  is 
treated  as  a  prisoner  of  war,  and  incurs  no  responsibility  for 
his  previous  acts  of  espionage."  ^ 

Noncombatant  status  is  in  general  extended  to  those  who 
take  no  direct  part  in  the  war.    Such  status  is  usually  conced- 

2  Hague  Convention,  1907,  Laws  and  Customs  of  War  on  Land,  Ap- 
pendix, p.  542. 


276  PERSONS   DURING   WAR.  (Ch,  13 

cd  to  women,  children,  clergy,  scientists,  discoverers,  profes- 
sional men,  ordinary  laborers,  etc.,  who  do  not  participate  in 
the  hostilities,  regardless  of  allegiance.' 

The  United  States,  so  early  as  July  6,  1708,  authorized  the 
President,  in  event  of  war,  to  regulate  the  sojourn  of  subjects 
of  a  hostile  state  remaining  within  United  States  jurisdiction 
after  the  outbreak  of  war.*  Treaties  have  also  provided  for 
such  contingencies.^ 

3  "When  persous  are  allowed  to  remain,  either  for  a  specified  time 
after  the  commencement  of  war,  or  during  good  behavior,  they  are 
exonerated  from  the  disabilities  of  enemies  for  such  time  as  they  in 
fact  stay,  and  they  are  placed  in  the  sam<^  position  as  other  for- 
eigners, except  that  they  cannot  carry  on  a  direct  trade  in  their  own 
or  other  enemy  vessels  with  the  enemy  country."  Hall,  Int.  Law  (5th 
Ed.)  395.  See,  also,  1  Kent,  Comm.  p.  56 ;  1  Halleck,  Int.  Law  (4th 
Ed.)  430,  461,  465 ;   2  Id.  4S4,  506. 

4  1  Stat.  577. 

5  "If  by  any  fatiility  which  cannot  be  expected,  and  which  may 
God  avert,  the  two  contracting  parties  should  be  engaged  in  a  war 
with  each  other,  they  have  agreed,  and  do  agree,  now  for  then,  that 
there  shall  be  allowed  the  term  of  six  months  to  the  merchants  resid- 
ing on  the  coasts  and  in  the  ports  of  each  other,  and  the  term  of  one 
year  to  those  who  dwell  in  the  interior,  to  arrange  their  business  and 
transport  their  effects  wherever  they  please,  with  the  safe  conduct 
necessary  to  protect  them  and  their  property,  until  they  arrive  at 
the  ports  designated  for  their  embarkation.  And  all  women  and  chil- 
dren, scholars  of  every  faculty,  cultivators  of  the  earth,  artisans,  me- 
chanics, manufacturers  and  fishermen,  unarmed  and  inhabiting  the 
unfortified  towns,  villages  or  places,  and,  in  general,  all  others  whose 
occupations  are  for  the  common  subsistence  and  benefit  of  mankind, 
shall  be  allowed  to  continue  their  respective  employments,  and  shall 
not  be  molested  in  their  persons,  nor  shall  their  houses  or  goods  be 
burnt,  or  otherwise  destroyed,  nor  their  fields  wasted  by  the  armed 
force  of  the  belligerent,  in  whose  power,  by  the  events  of  war,  they 
may  happen  to  fall;  but  if  it  be  necessary  that  anything  should  be 
taken  from  them  for  the  use  of  such  belligerent,  the  same  shall  be 
paid  for  at  a  reasonable  price. 

"And  it  is  declared  that  neither  the  pretense  that  war  dissolves 
treaties,  nor  any  other  whatever,  shall  be  considered  as  annulling  or 
suspending  this  article ;  but,  on  the  contrary,  that  the  state  of  war 
is  precisely  that  for  which  it  is  provided,  and  during  which  its  pro- 
visions are  to  be  sacredly  observed,  as  the  most  acknowledged  obliga- 
tions in  the  law  of  nations." 

Article  21,  Treaty  between  United  States  and  Italy,  Feb.  26,  1871. 


§  111)  NEUTRAL   INDIVIDUALS    DURING   WAR.  277 


NEUTRAX   INDIVIDUALS    DURING   AVAR. 

111.  A  neutral  state  is  not,  in  general,  responsible  for  the 
conduct  of  its  nationals  during  virar;  but  tbe  individ- 
ual may  be  liable  under  domestic  law  to  the  state  to 
whicb  be  ow^es  jurisdiction  and  under  international 
law  to  tbe  belligerent. 

Neutral  persons  are  those  who  are  nationals  of  states  not 
taking-  part  in  the  war.  They  are  liable  for  acts  which  they 
commit  against  a  belligerent,  especially  if  they  engage  in  mil- 
itary operations.  Liability  does  not  extend,  in  general,  to 
aid  by  loans  or  indirect  aid  in  civil  or  administrative  services." 

While  the  neutral  power  is  not  obliged  to  prevent  its  nation- 
als from  engaging  in  contraband  trade,  from  attempting  to 
violate  a  blockade,  or  from  unneutral  service,  yet  it  has  no 
claim  against  a  belligerent  which  inflicts  the  ordinary  penal- 
ties for  such  offenses  on  its  nationals. 

A  neutral  state  may,  however,  protest  against  any  excep- 
tionally severe  treatment  of  its  nationals,  or  against  any  policy 
which  might  involve  such  penalties.  There  was  a  general  pro- 
test against  the  declaration  of  the  Russian  authority  in  the 
Far  East  in  1904  to  the  effect  that  correspondents  using  wire- 
less telegraphy  for  communicating  war  news  to  the  enemy 
would  be  treated  as  spies, ^  and  this  protest  was  heeded. 

6  Hague  Convention,  1907,  Rights  and  Duties  of  Neutral  Powers 
and  Persons  in  Case  of  War  on  Land,  c.  Ill,  Neutral  Persons,  Ap- 
pendix, p.  548. 

T  Foreign  Relations  U.  S.  1904,  p.  729. 


278  PROPERTY    ON    LAND.  (Ch.  14 


CHAPTER  XIV. 
PROPERTY  ON  LAND. 

112.  Public  Property  During  War — Immovable  Public  Property. 

113.  Movable  Public  Pi'operty. 

114.  Property  of  Municipalities  and  Institutions. 

115.  Immovable  Private  Property. 

116.  Movable  Property  of  Military  Use. 

117.  Private  Property  In  Enemy  Jurisdiction. 

118.  Booty. 

PUBLIC    PROPERTY    DURING    "WAR— IMMOVABLE    PUB- 
LIC   PROPERTY. 

112.  (a)  Immovable  public  property,  destined  for  nse  in  -war, 
is  liable  to  sucb  treatment  as  tbe  enemy  may  deter- 
mine. 

Cb)  Immovable  public  property,  \(rhicb  is  not  destined  for  use 
in  war,  but  ivbicli  may  be  productive  of  national  in- 
come and  is  ivitbin  tbe  jurisdiction  or  under  the  mili- 
tary autbority  of  an  enemy  state,  may  be  administered 
by  tbat  state  according  to  tbe  principles  of  usufruct. 

(c)  Immovable  public  property  similarly  situated,  ivhicb  is 
not  of  use  for  ivar,  but  devoted  to  educational,  reli- 
gious, and  like  purposes,  is  exempt. 

(a)  Immovable  public  property,  destined  for  military  uses, 
as  forts,  dry  docks,  or  aresenals,  may  become  of  special  dan- 
ger to  the  enemy,  and  therefore  may  be  treated  in  such 
manner  as  the  enemy  may  deem  best  suited  to  render  it  in- 
nocuous, or  it  may  be  used  by  the  enemy  against  its  original 
owner.  A  fortification  might  be  destroyed,  or  might  be  oc- 
cupied and  used  by  the  enemy  for  his  own  ends. 

(b)  Real  estate,  public  buildings,  forests,  etc.,  belonging  to 
one  belligerent  state,  while  within  the  power  of  the  other  bel- 
ligerent, may  be  administered  for  his  benefit.  Formerly  such 
property  was  regarded  as  hostile,  and  liable  to  destruction  or 
other  severe  treatment.  The  title  to  such  property  is  not  now 
regarded  as  transferred  with  the  physical  control.  The  title 
must  be  confirmed  by  conquest  or  other  method,  and  meantime 


§  113)  PUBLIC    PROPERTY    DURING    WAR.  279 

the  occupying  state  has  merely  the  right  of  occupancy  and  use 
of  products  of  the  property.^  The  occupying  state  may  collect 
and  use  the  rents  of  public  real  property  falling  due,  and  a  re- 
ceipt for  rent  paid  under  such  conditions  is  valid.  An  invader 
may  use  public  buildings  for  public  purposes.  These  build- 
ings are  liable  to  the  ordinary  wear  and  tear  of  such  use. 
Furniture  is  considered  a  part  of  the  building,  and  may  not  be 
removed.  Likewise,  if  crops  belonging  to  the  state  or  trees 
in  the  public  forests  come  to  maturity  or  the  time  for  cutting, 
they  may  be  used  by  the  invading  state.  If  such  property  is 
sold  to  a  party,  that  party  would  not  have  rights  if  he  had  not 
taken  the  property  within  his  possession  during  the  period  of 
occupancy,  as  the  original  government,  after  its  restoration, 
might  prevent  its  appropriation. 

(c)  Immovable  property,  not  of  use  for  war,  as  educational 
institutions,  churches,  etc.,  though  belonging  to  the  state,  is 
exempt,  and  should  be  restored  at  the  end  of  the  war  in  its 
original  condition. 

The  rents  or  profits  of  property  permanently  set  aside  for 
the  maintenance  of  hospitals,  educational  institutions,  or  for 
scientific  or  artistic  purposes,  are  not  liable  to  seizure,  even 
though  the  property  from  which  they  are  derived  may  be  with- 
in the  power  of  the  enemy. 

SAME— MOVABLE   PUBLIC   PROPERTY. 

113.    (a)    Movable   public   property   of   one   belligerent,   \irhicli 
may  be  of  use  for  xrar,  is  liable  to  seizure  by  tbe  otber 
belligerent, 
(b)    Movable  public  property,  ivbich.  is  not  of  use  for  war,  is 
exempt. 

(a)  Custom  has,  in  general,  applied  the  principle  that  all 
public  property,  which  is  susceptible  of  use  by  the  belligerent 
seizing  it  for  warlike  purposes,  or  which  can  be  of  similar  use 
to  his  enemy,  directly  or  indirectly,  can  be  appropriated. 
There  is  no  question  in  regard  to  the  following  classes  of 
property :   Munitions  of  war,  vessels  of  war,  means  of  trans- 

1  2  Halleck,  Int.  Law  (4th  Ed.)  73 ;  Hague  Convention,  1907,  Laws 
and  Customs  of  War  on  Land,  art.  55,  Appendix,  p.  544. 


280  PROPERTY    ON    LAND,  (Cll.  14 

port,  state  treasure,  consisting-  of  moneys  and  checks  payable 
to  bearer,  taxes,  customs,  etc.  In  general,  taxes  must  be  ap- 
plied to  administrative  expenses,  or  to  the  payment  of  debts 
for  which  specifically  hypothecated;  the  overplus  only  being 
applied  by  the  belligerent  to  his  own  use.  In  regard  to  cer- 
tain other  movable  or  personal  property,  such  as  checks  requir- 
ing- indorsement,  and  contract  debts  in  other  forms,  which  may 
require  payment  to  be  enforced  judicially,  or  the  seizure  of 
which  may  not  operate  to  relieve  the  debtor  making  payment 
of  his  obligation,  there  is  some  question  as  to  the  right  of  seiz- 
ure.- Article  53  of  the  Hague  Convention  Respecting  the 
Laws  and  Customs  of  War  on  Land  provides  that  "an  army 
of  occupation  can  only  take  possession  of  cash,  funds,  and 
realizable  securities  which  are  strictly  the  property  of  the 
state."  Professor  Westlake  says  of  this  important  and  pos- 
sibly doubtful  clause  that  it  "is  so  worded  as  to  exempt  from 
seizure  both,  first,  cash,  funds,  and  realizable  securities  of 
which  the  state  is  only  custodian,  such  as  savings  bank  funds, 
and,  secondly,  debts  due  to  the  state  not  falling  under  the  de- 
scription of  realizable  securities.  The  first  exemption  speaks 
for  itself.  In  the  second  exemption  the  original  French  is 
'valeurs  exigibles,'  which  Professor  Ilolland  translates  'real- 
izable securities,'  and  which  has  been  translated  officially  into 
German  as  'eintreibbare  forderungen.'  Professor  Holland 
describes  it  as  purposely  ambiguous,  and  there  are  grave  dif- 
ferences of  opinion  as  to  what  the  rule  on  the  matter  ought  to 
be.  There  is  no  doubt  that,  if  the  occupation  should  be  rip- 
ened into  conquest,  all  the  debts  due  to  the  extinguished  state 
will  belong  by  the  laws  of  state  succession  to  the  conqueror 
and  may  be  sued  for  by  him.  There  is  also  no  doubt  that  docu- 
ments payable  to  bearer  may  be  seized  by  an  occupant  as  part 
of  the  state  treasure,  so  that  he  thereby  becomes,  not  only 
their  actual,  but  their  lawful,  bearer,  and  can  sue  on  them  as 
soon  as  due,  whether  or  not  his  occupation  of  the  place  where 
they  were  seized  has  continued  in  the  meantime  or  not.  But 
the  occupant  who  is  not  a  conqueror  does  not  represent  the 
person  of  the  enemy  state,  and  therefore,  as  it  seems  to  us, 
can  supply  nothing  which  remains  to  be  done  by  the  enemy 

2  Hall,  Int.  Law  (5th  Ed.)  420. 


§  115)  IMMOVABLE    PRIVATE    PROPERTY.  281 

State  in  order  to  complete  the  right  to  judgment  on  a  debt.  If 
he  has  seized  a  document  payable  to  order,  he  cannot  indorse 
it;  if  the  debt  is  claimed  by  any  other  kind  of  title,  he  may 
have  seized  the  evidence  necessary  for  proving  it,  but  he  can- 
not put  himself  forward  as  plaintiff,  or  use  his  physical  power 
in  the  locality  to  enforce  payment.  This,  however,  is  not  the 
modern  German  view.  By  an  ordinance  of  November  26, 
1870,  the  Germans  required  persons  who  owed  payments  for 
timber  from  the  state  forests,  in  what  they  had  established  as 
'the  general  government  of  Alsace,'  to  make  those  payments 
to  their  cashiers  in  the  district."  ^ 

(b)  Public  archives,  contents  of  museums,  scientific  appa- 
ratus, vessels  engaged  in  exploration  or  scientific  research, 
etc.,  are  exempt.* 

PROPERTY     OF     MUNICIPALITIES     AND    INSTITUTIONS. 

114.  "Tlic  property  of  the  communes,  that  of  institutions 
dedicated  to  religion,  charity,  and  education,  the  arts 
and  sciences,  even  when  state  property,  shall  be 
treated  as  private  property. 
All  seizure  of,  destruction,  or  willful  damage  done  to 
institutions  of  this  character,  historic  monuments,  and 
w^orks  of  art  and  science,  is  forbidden,  and  should  be 
made  the  subject  of  legal  proceedings."  6 


IMMOVABLE   PRIVATE   PROPERTY. 

115.   Immovable  private  property  is  in  general  exempt,  thoughi 
subject  to  the  necessities  of  war. 

In  early  practice  immovable  private  property  of  one  belliger- 
ent within  the  power  of  the  other  belligerent  was  appropriated, 
later  it  was  administered  for  the  benefit  of  the  belligerent  hav- 
ing power  over  it,  and  in  modern  times  the  real  property  of 
private  citizens  has  been  exempt  from  appropriation,  unless 
because  of  a  necessity  of  war.    Private  property,  as  buildings, 

8  Westlake,  Int.  Law,  pt.  2,  p.  103. 
4  See,  also,  under  military  occupation,  post,  p.  334. 
B  Hague  Convention,  1007,  Laws  and  Customs  of  War  on  Land,  art. 
56.  Appendix,  p.  544. 


282  PROPERTY   ON    LAND.  (Ch.  14 

would  be  liable  to  the  consequences  of  actual  belligerent  op- 
erations; i.  e.,  if  a  building  should  be  in  the  line  of  fire,  it 
might  be  destroyed.  Private  property,  as  a  building,  may  be 
appropriated  for  the  use  of  forces  in  case  of  necessity,  and  in 
which  case  indemnity  would  be  paid  for  its  use. 


MOVABLE   PROPERTY   OF   MILITARY   USE. 

116.   Movable  or  personal  property  is  under  regulations  sub- 
ject to  seizure. 

(a)  CONTRIBUTIONS— Contributions  consist  in  moneys  lev- 

ied by  the  authority  of  commander  in  cbief  in  excess 
of  the  taxes. 

(b)  REQUISITIONS— RecLuisitions    consist    in    the    enforced 

delivery  in  kind  of  articles  needed  by  the  enemy  for 
consumption  or  temporary  use. 

(c)  FORAGING — When   from    lack   of    time    or    other  reason 

requisitions  are  not  available,  supplies  in  kind  may  be 
taken  directly  by  the  forces  from  the  fields  or  other 
places  by  foraging. 

(a)  Plunder  and  pillage  are  now  abolished,  and  the  regu- 
lated seizure  of  private  property  ma)^  be  said  to  have  taken  the 
place  of  these  ancient  seizures  and  subsequent  confiscations. 

"No  contribution  shall  be  collected,  except  under  a  written 
order,  and  on  the  responsibility  of  a  commander  in  chief. 

"The  collection  of  the  said  contribution  shall  only  be  effect- 
ed as  far  as  possible  in  accordance  with  the  rules  of  assess- 
ment and  incidence  of  the  taxes  in  force. 

"For  every  contribution  a  receipt  shall  be  given  to  the  con- 
tributors." ® 

(b)  Requisitions  consist  in  food,  clothes,  forage,  wagons, 
horses,  lodging,  labor,  railroad  material,  boats,  and  other 
means  of  transport,  all  of  which  are  levied  under  what  is  rec- 
ognized as  military  necessity.  These  may  be  made  by  the  com- 
mander of  any  detached  portion  of  the  army  under  a  higher 
authority,  which  latter  regulates  the  articles  to  be  requisi- 
tioned. 

"Requisitions  in  kind  and  services  shall  not  be  demanded 
from  municipalities  or  inhabitants  except  for  the  needs  of  the 

«  Id.  art.  51,  Appendix,  p.  544. 


§  117)        PRIVATE  PROPERTY  IN  ExNEMT  JURISDICTION.  283 

army  of  occupation.  They  shall  be  in  proportion  to  the  re- 
sources of  the  country,  and  of  such  a  nature  as  not  to  involve 
the  inhabitants  in  the  obligation  of  taking  part  in  military  op- 
erations against  their  own  country. 

"Such  requisitions  and  services  shall  only  be  demanded  on 
authority  of  the  commander  in  the  locality  occupied. 

The  requisitions  in  kind  shall  as  far  as  possible  be  paid  for 
in  cash;  if  not,  a  receipt  shall  be  given,  and  the  payment  of 
the  amount  due  shall  be  made  as  soon  as  possible."  ^ 

Requisitions  may  be  made  by  naval  forces  for  provisions  or 
supplies  of  which  they  are  in  immediate  need.  After  due  no- 
tice such  requisitions  may  be  enforced  by  bombardment,  sub- 
ject to  the  restrictions  of  the  Hague  Convention  of  1907. 
"These  requisitions  shall  be  in  proportion  to  the  resources  of 
the  place.  They  shall  only  be  demanded  in  the  name  of  the 
commander  of  the  said  naval  force,  and  they  shall,  as  far  as 
possible,  be  paid  for  in  cash;  if  not,  they  shall  be  evidenced 
by  receipts."  * 

(c)  Sometimes  it  is  not  possible  to  find  the  owner  of  prop- 
erty; e.  g.,  grain  in  the  field,  wood  in  the  forest,  etc.,  or  other 
supplies  in  order  to  make  requisition.  When  seizure  of  such 
property  is  made  for  the  immediate  use  of  the  military  forces, 
it  is  of  the  nature  of  foraging,  and  is  restorted  to  in  lieu  of 
making  requisitions. 

PRIVATE  PROPERTY  IN  ENEMY  JURISDICTION. 

117.  The  personal  or  movable  property  of  citizens  of  either 
belligerent  state  found  in  the  territorial  jurisdiction 
of  the  other,  also  debts  due  to  citizens  of  the  enemy 
state,  are  no  longer  regarded  confiscable,  unless  under 
special  authorization. 

In  regard  to  debts  due  by  a  state  to  citizens  of  an  enemy 
state,  the  rule  is  now  well  established  that  they  are  not  con- 
fiscable, nor  is  the  interest  due  upon  such  debt  sequestrated. 
This  rule  is  now  so  well  established  and  acknowledged  by  all 
the  authorities  that,   in  order  to   avoid   such  payments,   tlie 

1 1d.  art.  52,  Appendix,  p.  544. 

8  Bombardment  by  Naval  Forces,  post,  p.  323. 


284  PROPERTY    ON    LAND.  (Ch.  14 

agreement  must  incorporate,  as  an  express  reservation,  the 
right  to  sequestrate;  since,  in  the  absence  of  such  reservation. 
a  state  is  assumed  to  have  contemplated  payment,  notwith- 
standing the  existence  of  war.^ 

The  United  States  Supreme  Court  in  1814  held,  in  reversing 
the  decision  of  the  lower  court,  that  the  effect  of  a  declaration 
of  war,  or  of  the  existence  of  war,  alone  did  not  confer  upon 
the  courts  the  power  to  confiscate  enemy  property  without 
some  expression  of  the  will  of  the  state  itself  to  that  effect,  al- 
though it  was  admitted  that  the  existence  of  war  carried  with 
it  the  right  to  effect  such  confiscation.^"  Many  treaties  also 
definitely  provide  for  the  exemption  of  private  property  of 
one  belligerent  in  the  territory  of  the  other.^^ 

BOOTY. 

118.   Booty  is  the  term  nsnally  applied  to  property  captured 
on  land,  and  title  thereto  vests  in  the  state. 

In  some  countries  the  property  captured  as  booty  is  sold,  and 
the  proceeds  used  in  whole  or  in  part  as  a  compensation  to  the 
captors.  Great  Britain,  in  certain  cases,  rewards  such  serv- 
ices. The  United  States  appropriates  all  property  captured  by 
its  armies  on  land. 

»  Ware  v.  Hylton,  3  Dall.  199,  1  L.  Ed.  568. 

10  Brown  v.  United  States,  8  Crancli,  110,  3  L.  Ed.  .504. 

11  Treaty  between  United  States  and  Italy,  Feb.  26,  1871,  art.  21. 


§  119)  PROPERTY   ON   THE   WATER,  285 

CHAPTER  XV. 

PROPERTY  ON  THE  WATER. 

119.  Public  Property  of  Belligerents  on  the  Water — Vessels. 

120.  Goods. 

121.  Private  Property  of  Belligerents  on  the  Water — Vessela 

122.  Vessels  Exempt  by  Service. 

123.  Vessels  Exempt  by  Occupation. 

124.  Vessels  Exempt,  by  Delai  de  Faveur. 

125.  Goods  in  General. 

126.  Means  of  Telegraphic  Communication. 

PUBLIC    PROPERTY    OF    BELLIGERENTS    ON    THE    .W^A- 
TER— VESSELS. 

119.    Public  vessels  of  a  belligerent  outside  of  neutral  juris- 
diction are  liable  to  capture,  unless  specially  exempt. 
The    follouring   vessels,    TP^ben    innocently    employed,    are    ex- 
empt: 

(1)  Cartel  sbips  commissioned  for  the  exchange  of  prisoners. 

(2)  Vessels    charged    ivith    religious,    scientific,    and    philan- 

thropic missions. 

(3)  Duly  authorized  hospital  ships. 

War  on  land  is  in  the  main  aimed  at  the  submission  of  the 
enemy  army.  War  on  the  sea  aims,  not  merely  at  the  defeat 
of  the  enemy  navy,  but  also  at  the  destruction  of  the  enemy's 
commerce  and  means  of  communication  and  the  weakening 
or  destruction  of  the  enemy's  means  of  defense  and  support. 
Much  greater  freedom  is  allowed  in  the  treatment  of  enemy 
property  on  the  water  than  on  land.  Where  in  land  warfare 
attack  is  mainly  on  armed  enemy  individuals,  on  the  sea  at- 
tack is  mainly  upon  vessels. 

The  public  vessels  of  the  enemy  are  special  objects  of  at- 
tack in  warfare  on  the  sea.  All  such  vessels  as  are  not  spe- 
cifically engaged  in  nonmilitary  occupations,  which  serve  both 
belligerents  alike  or  serve  the  world  at  large,  are  liable  to 
capture.  The  number  of  such  vessels  would  be  comparatively 
small  and  includes : 


286  PROPERTY   ON   THE    WATER.  (Ch.  15 

(1)  Cartel  ships  serving  both  bcllij^ercnts  alike. 

(2)  Vessels  engaged  in  work  for  the  good  of  humanity  in 
general. 

C3)  Hospital  ships. ^ 

The  Japanese,  in  the  war  with  China,  in  1893,  and  in  the 
war  with  Russia,  in  1904,  also  exempted  "lighthouse  vessels 
and  tenders." 

SAMB— GOODS. 

120.    Public  goods  of  a  belligerent  are  liable  to  capture  out- 
side of  neutral  jurisdiction. 

Goods  belonging  to  an  enemy  state  would  in  general  be  li- 
able to  capture  on  the  sea,  if  not  under  a  neutral  flag.  Prob- 
ably exemptions  analogous  to  those  in  case  of  land  warfare 
would  hold  in  case  of  works  of  art,  archives,  historical  and 
scientific  collections,  and  the  like. 


PRIVATE   PROPERTY   OF   BELLIGERENTS   ON   THE   WA- 
TER—VESSELS. 

121.    Private  vessels  of  the  belligerent  outside  of  neutral  ju- 
risdiction are  liable  to  captTire  unless  specially  exempt. 

There  have  been  attempts  to  bring  about  the  general  ex- 
emption from  capture  of  all  innocently  employed  private  ves- 
sels. In  1783  Franklin  sent  an  article  to  Oswald,  which  he 
rather  wished  than  expected  would  be  adopted  in  the  treaty 
with  Great  Britain,  to  the  effect  that  "all  merchants  or  traders, 
with  their  unarmed  vessels  employed  in  commerce,  exchanging 
the  products  of  different  places,  and  thereby  rendering  the 
necessaries,  conveniences,  and  comforts  of  human  life  more 
easy  to  obtain  and  more  general,  shall  be  allowed  to  pass  free- 
ly, unmolested."  ^  The  treaty  between  the  United  States  and 
Prussia  of  1785  contained  the  following:  "All  merchant  and 
trading  vessels  employed  in  exchanging  the  products  of  differ- 

1  Hague  Convention,  1907,  Naval  War  and  Geneva  Convention,  art. 
1,  Appendix,  p.  549. 

2  9  Sparks.  Works  of  Franklin,  p.  409. 


§  122)  PRIVATE    PROPERTY    OF   BELLIGERENTS.  287 

ent  places,  and  thereby  rendering  the  necessaries,  conven- 
iences, and  comforts  of  human  Hfe  more  easy  to  be  obtained 
and  more  general,  shall  be  allowed  to  pass  free  and  unmo- 
lested; and  neither  of  the  contracting  powers  shall  grant  or 
issue  any  commission  to  any  private  armed  vessels,  empower- 
ing them  to  take  or  destroy  such  trading  vessels  or  interrupt 
such  commerce."  The  treaty  between  Italy  and  the  United 
States  of  February  26,  1871,  now  in  force,  provides  in  article 
13:  "The  high  contracting  parties  agree  that  in  the  unfor- 
tunate event  of  a  war  between  them  the  private  property  of 
their  respective  citizens  and  subjects,  with  the  exception  of 
contraband  of  war,  shall  be  exempt  from  capture  or  seizure 
on  the  high  seas  or  elsewhere  by  the  armed  vessels  or  by  the 
military  forces  of  either  party;  it  being  understood  that  this 
exemption  shall  not  extend  to  vessels  and  their  cargoes  which 
may  attempt  to  enter  a  port  blockaded  by  the  naval  forces  of 
either  party." 

The  question  received  much  attention  at  the  time  of  the 
Declaration  of  Paris  in  1856  and  again  at  the  Hague  Confer- 
ences of  1899  and  1907;  but  exemption  of  private  vessels  from 
capture  is  not  yet  secured. 

SAME— VESSELS    EXEMPT   BY   SERVICE. 

122.    Certain  private  -vessels  of  belligerents  are  exempt  from 
capture  because  of  the  nature  of  tbeir  service: 

(a)  Cartel  ships. 

(b)  Hospital  ships. 

(c)  Ships    engaged   in   religious,    scientific,    or    philanthropic 

ivork. 

(a)  Cartel  vessels  belonging  to  private  citizens  of  the  bel- 
ligerents engaged  in  the  exchange  of  prisoners  are  exempt 
from  capture  while  employed  according  to  the  cartel  agree- 
ment, by  which  they  serve  both  belligerents  alike. 

(b)  Hospital  ships  serve  those  in  need  of  their  assistance 
without  distinction  as  to  nationality,  and  hence  it  is  of  mutual 
advantage  that  they  be  exempt  from  capture.^ 

3  Hague  Convention,  1907,  Naval  War  and  Geneva  Convention,  arts. 
2-4,  Appendix,  p.  549. 


288  PROPEliTY   ON   THE   WATER.  (Cll.  15 

(c)  The  vessels  charged  with  religious,  scientific,  or  philan- 
thropic missions  serve  humanity  in  general,  and  are  therefore 
exempt.* 

SAME— VESSELS    EXEMPT    BY    OCCUPATION. 

123.    Certain  private  vessels  of  belligerents  are  exempt  from 
capture  because  of  tbe  nature  of  their  occupations: 

(a)  Coast  fisliing  vessels  innocently  employed. 

(b)  Small  vessels  employed  in  local  trade. 

(a)  After  an  extended  review  of  the  authorities,  Mr.  Justice 
Gray,  delivering  the  opinion  of  the  United  States  Supreme 
Court  in  1900,  said :  "This  review  of  the  precedents  and  au- 
thorities on  the  subject  appears  to  us  abundantly  to  demon- 
strate that  at  the  present  day,  by  the  general  consent  of  the 
civilized  nations  of  the  world,  and  independently  of  any  ex- 
press treaty  or  other  public  act,  it  is  an  established  rule  of 
international  law,  founded  on  considerations  of  humanity  to 
a  poor  and  industrious  order  of  men,  and  of  the  mutual  con- 
venience of  belligerent  states,  that  coast  fishing  vessels,  with 
their  implements  and  supplies,  cargoes  and  crews,  unarmed, 
and  honestly  pursuing  their  peaceful  calling  of  catching  and 
bringing  in  fresh  fish,  are  exempt  from  capture  as  prize  of 
war. 

"The  exemption,  of  course,  does  not  apply  to  coast  fisher- 
men or  their  vessels,  if  employed  for  a  warlike  purpose,  or 
in  such  a  way  as  to  give  aid  or  information  to  the  enemy; 
nor  when  military  or  naval  operations  create  a  necessity  to 
which  all  private  interests  must  give  way."  ** 

This  exemption  does  not  apply  to  deep-sea  fishing  vessels.^ 

(b)  Small  boats,  employed  in  local  trade,  with  their  appli- 

*  ITa.taie  Convention,  1907,  Right  of  Capture  in  Naval  War,  art.  4, 
Scott.  Penr-0  ('niiferencps.  p.  2.S.3. 

5  The  Paquete  Habana,  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed. 
o20;  Hague  Convention,  1907,  Right  of  Capture  in  Naval  War,  art. 
8,  Scott,  Peace  Conferences,  p.  283. 

6  The  Paquete  Habana,  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed 
320. 


§  124)  PRIVATE    PROPERTY    OF    BELLIGERENTS.  289 

ances,   rigging,  tackle,  and  cargo,  are  exempt   from  capture 
so  long  as  they  are  innocently  employed.'^ 

The  exemption  of  coast  fishing  vessels  and  small  boats  en- 
gaged in  local  trade,  secured  by  the  Hague  Convention  of 
1907,  was,  according  to  the  report  of  the  American  delegation, 
"to  give  to  the  better  practice  the  sanction  of  conventional 
obligation  and  to  include  small  nonsea-going  vessels,  exclu- 
sively engaged  in  the  coast  trade,  within  its  beneficial  opera- 
tion." 


SAME— VESSELS    EXEMPT    BY   DELAI   DE   FAVEUR. 

124.  Private  vessels  of  one  belligerent,  not  intended  for  con- 
version into  -war  ships,  xsrithin  or  bound  for  tbe  ports 
of  tbe  other  belligerent  at  the  outbreak  of  -war,  are 
usually  allo^ved  a  certain  number  of  days  (days  of 
grace,  delai  de  faveur)  before  becoming  liable  to  cap- 
ture, and  in  case  such  vessels  are  unable  to  leave  port 
at  the  expiration  of  the  period  they  may  be  interned, 
and  are  restored  at  the  end  of  the  ^var. 

The  idea  of  allowing  a  degree  of  favor  to  enemy  private 
vessels  in  port  at  the  outbreak  of  war  is  not  new.  Molloy,  in 
the  seventeenth  century,  wrote :  "If  the  ships  of  any  nation 
happen  to  arrive  in  any  of  the  king  of  England's  ports,  and 
afterwards,  and  before  their  departure,  a  war  breaks  out,  they 
may  be  secured,  privileged  without  harm  of  body  or  goods ; 
but  under  this  limitation,  till  it  be  known  to  the  king  how  the 
prince  or  republick  of  those  whose  subjects  the  parties  are 
have  used  and  treated  those  of  our  nation  in  their  ports.  But 
if  any  should  be  so  bold  as  to  visit  our  ports  after  a  war  is 
begun,  they  are  to  be  dealt  with  as  enemies."  * 

Later  practice  has  not  been  uniform.^      Proclamations   of 

7  Hague  Conveutiou,  1907,  Right  of  Capture  in  Naval  War,  art. 
3,  Scott,  Peace  Conferences,  p.  283. 

8  De  Jure  Maritime,  bk.  T,  c.  1,  XVII. 

»  French  Declaration,  March  27,  1854,  six  weeks ;  British  Declara- 
tion, March  29,  1854,  six  weeks;  Spanish  Decree,  April  23,  1S9S,  five 
days ;  United  States  Proclamation,  April  25,  1898,  thirty  days ;  Jap- 
anese Ordinance,  Feb.  9,  1904,  seven  days;  Russian  Rules,  Feb.  14, 
1904  (except  in  Far  East),  forty-eight  hours. 

WiLS.lNT.L.— 19 


290  PROPERTY   OX   THE   WATER.  (Ch.  15 

belligerents  have  allowed  varying  periods,  though  it  is  gener- 
ally recognized  that  some  period  should  be  allowed  to  inno- 
cent private  vessels/**  but  not  to  private  vessels  adapted  for 
conversion  into  war  vessels  or  under  subsidy  for  war  pur- 
poses.^^ 

The  treatment  of  enemy  merchant  ships  at  the  outbreak  of 
hostilities  was  considered  at  the  Hague  Conference  in  1907 
and  a  convention  was  signed. ^^  This  convention  states  that 
it  is  desirable  that  a  reasonable  number  of  days  of  grace  should 
be  allowed  for  merchant  vessels  in  an  enemy  port  or  bound 
for  an  enemy  port  at  the  outbreak  of  hostilities.  The  num- 
ber of  days  is  not  determined.  Such  vessels  kept  in  an  enemy 
port  by  force  majeure  may  be  interned  without  compensation 
or  appropriated  on  payment  of  compensation.  Vessels  which 
have  left  port  before  the  outbreak  of  war  and  are  encountered 
on  the  High  seas  while  still  ignorant  of  the  commencement  of 
war  are  entitled  to  similar  treatment.^^ 

They  may  be  detained  till  the  end  of  the  war  without  com- 
pensation or  appropriated  subject  to  payment  of  compensation. 
The  crew,  passengers,  and  ship's  papers  must  be  placed  in 
safety. 

These  exemptions  do  not  apply  in  case  the  vessel  has  touch- 
ed at  a  port  after  the  outbreak  of  hostilities. 

GOODS    IN    GENERAL. 

125.  In  general,  w^lien  on  the  sea  and  unless  under  a  neutral 
flag,  the  private  goods  of  one  belligerent  are  liable  to 
capture   by  the   other  belligerent. 

The  modifications  in  the  severity  of  treatment  of  property 
on  land  have  not  extended  to  property  at  sea,^*  but  the  atti- 
tude toward   property  at   sea  in   time   of  war  has  depended 

10  The  Buena  Ventura,  175  U.  S.  384,  20  Sup.  Ct.  148,  44  L.  Ed. 
206. 

11  The  Panama,  176  U.  S.  535,  20  Sup.  Ct.  4S0,  44  L.  Ed.  577. 

12  Convention  Relative  to  the  Status  of  Enemy  Merchant  Ships  at 
the  Outbreak  of  Hostilities. 

13  Id.  arts.  1-3. 

14  Bentwich,  War  and  Private  Property,  pp.  79-96. 


§  125)  GOODS  IN   GENERAL.  291 

rather  upon  policy  than  upon  law.  The  United  States  has 
consistently  favored  the  exemption  of  merchant  vessels  and 
their  cargoes  from  capture.  Franklin,  in  1783,  said  of  the 
principle  of  exemption  from  capture  of  private  property  at 
sea  in  time  of  war:  "I  rather  wish  than  expect  it  will  be 
adopted."  ^^  President  Monroe,  in  his  message  of  December 
2,  1823,  and  President  Pierce,  in  his  message  of  December  4, 
1854,  advocate  agreements  for  the  abolition  of  the  right  to 
capture  private  property  at  sea,  and  in  1856  President  Pierce 
proposed  as  a  condition  under  which  the  United  States  would 
ratify  the  Declaration  of  Paris,  by  which  "privateering  is  and 
remains  abolished,"  the  addition  of  the  clause:  "The  private 
property  of  subjects  and  citizens  of  a  belligerent  on  the  high 
seas  shall  be  exempt  from  seizure  by  public  armed  vessels  of 
the  other  belligerent  except  it  be  contraband."  The  Congress 
of  the  United  States  resolved  on  April  28,  1904:  "That  it  is 
the  sense  of  the  Congress  of  the  United  States  that  it  is  de- 
sirable, in  the  interest  of  uniformity  of  action  by  the  maritime 
states  of  the  world  in  time  of  war  that  the  President  endeavor 
to  bring  about  an  understanding  among  the  principal  maritime 
powers  with  a  view  of  incorporating  into  the  permanent  law 
of  civilized  nations  the  principle  of  the  exemption  of  all  pri- 
vate property  at  sea,  not  contraband  of  war,  from  capture  or 
destruction  by  belligerents."  The  American  delegation  at  the 
Hague  Conference  of  1907  endeavored  to  secure  the  exemp- 
tion of  innocent  private  property  at  sea  during  war. 

Professor  Westlake,  after  referring  to  the  fact  that  the 
United  States  and  some  other  states  have  advocated  the  policy 
of  exemption  of  enemy  property  at  sea,  says :  "On  principle 
we  must  say  that  the  capture  at  sea  of  enemy  property  as  such 
is  a  military  measure,  an  operation  of  war,  and  that  its  de- 
fense is  therefore  independent  of  the  mediaeval  doctrine  of 
the  solidarity  of  sovereigns  and  states  with  their  subjects,  on 
which  the  civil  courts  maintain  the  doctrines  of  noninter- 
course  and  even  perhaps  of  confiscation.  Its  justification  must 
lie  in  its  effect  on  the  fortunes  of  a  war.  To  appreciate  that 
efifect,  it  is  not  sufficient  to  consider  the  damage  done  to  the 
pecuniary  resources  of  a  belligerent  power  by  seizing  and  ap- 

18  Franklin  labored  for  this  in  1781.    9  Works  (Sparks'  Ed.)  p.  469. 


292  PROPERTY   ON   THE   WATER.  (Ch.  15 

propriating-  the  property  of  those  from  whom  it  can  levy  taxes 
and  cutting  off  their  opportunities  of  trade.  It  must  also  be 
remembered  that  the  capture  of  enemy  ships  has  always  car- 
ried with  it  the  right  to  detain  their  crews  as  prisoners.  In- 
deed the  doctrine  of  'courir  sus  aux  ennemis'  was  from  the 
first  as  much  directed  against  persons  as  against  things. 
Hence  the  existing  practice  deprives  the  enemy  of  important 
resources,  both  of  ships  which  might  be  available  as  transport.'! 
or  for  purposes  of  supply,  and  of  men  who  might  render  serv- 
ice on  board  ships  so  employed  or  in  the  fighting  navy,  and, 
indeed,  would  in  general  be  legally  compellable  to  do  so."  ^* 
In  Atlay's  edition  of  Wheaton's  International  Law,  in  1904, 
the  position  against  the  exemption  from  capture  of  private 
property  at  sea  is  stated  as  follows :  "The  indiscriminate  sei- 
zure of  private  property  on  land  would  cause  the  most  terrible 
hardship,  without  conferring  any  corresponding  advantage  on 
the  invader.  It  cannot  be  effected  without  in  some  measure 
relaxing  military  discipline,  and  is  sure  to  be  accompanied  by 
violence  and  outrage.  On  the  other  hand,  the  capture  of 
merchant  vessels  is  usually  a  bloodless  act;  most  merchant 
vessels  being  incapable  of  resisting  a  ship  of  war.  Again, 
property  on  land  consists  of  endless  varieties,  much  of  it  be- 
ing absolutely  useless  for  any  hostile  purpose,  while  property 
at  sea  is  almost  always  purely  merchandise,  and  thus  is  part 
of  the  enemy's  strength.  It  is,  moreover,  embarked  vohui- 
tarily,  and  with  a  knowledge  of  the  risk  incurred,  and  its  loss 
can  be  covered  by  insurance.  An  invader  on  land  can  levy 
contributions  or  a  war  indemnity  from  a  vanquished  country. 
He  can  occupy  part  of  its  territory  and  appropriate  its  rates 
and  taxes;  and  by  these  and  other  methods  he  can  enfeeble 
the  enemy  and  terminate  the  war.  But  in  a  maritime  war  a 
belligerent  has  none  of  these  resources,  and  his  main  instru- 
ment of  coercion  is  crippling  the  enemy's  commerce.  If  war 
at  sea  were  to  be  restricted  to  the  naval  forces,  a  country  pos- 
sessing a  powerful  fleet  would  have  very  little  advantage  over 
a  country  with  a  small  fleet  or  with  none  at  all.  If  the  enemy 
kept  his  ships  of  war  in  port,  a  powerful  fleet,  being  unable  to 
operate  against  commerce,  would  have  little  or  no  occupation. 

16  Westlake,  Int.  Law,  pt.  II,  \Yar,  p.  130. 


§  125)  GOODS   IN    GENERAL.  293 

The  United  States  proposed  to  add  to  the  Declaration  of  Paris 
a  clai:se  exempting  all  private  property  on  the  high  seas  from 
seizure  by  public  armed  vessels  of  the  other  belligerent,  ex- 
cept it  be  contraband;  but  this  proposal  was  not  acceded  to. 
Nor  does  it  seem  likely,  for  the  reasons  stated  above,  that 
maritime  nations  will  forego  their  rights  in  this  respect. 

"On  the  other  hand,  the  enormous  extension  of  railways, 
the  increase  of  the  practice  of  marine  insurance,  and  the  de- 
pendence of  the  greatest  naval  power  in  the  world  upon,  an 
ocean-borne  food  supply,  have  deprived  many  of  the  older 
arguments  in  favor  of  the  retention  of  the  claim  to  capture 
private  property  at  sea  of  their  force,  while  at  the  same  time 
it  has  inclined  many  persons  in  Great  Britain,  more  especially 
those  interested  in  shipping,  to  look  favorably  on  a  proposed 
abandonment  of  the  claim."  ^' 

Property  subject  to  capture  at  sea  occupies  an  entirely  dif- 
ferent position  from  that  of  property  on  land.  In  enforcing 
requisitions  of  private  property  on  land,  it  is  usual  to  limit  the 
property  taken  to  such  as  will  be  useful  to  the  captor  for  the 
purposes  of  war.  In  taking  this  property  the  noncombatant 
population  is  deprived  of  material  necessary  for  the  support  of 
themselves  or  their  animals.  On  the  other  hand,  the  reasons 
urged  in  support  of  the  right  to  take  property  at  sea  are  that 
only  the  material  interests  suffer,  and  no  personal  suffering 
is  inflicted.  Again,  such  property  is  shipped  by  the  owners 
with  the  intention  and  idea  of  deriving  a  profit  from  the  enter- 
prise. The  risks  of  war  are  appreciated  and  understood,  and 
can  be  provided  for  by  means  of  insurance.  It  is  in  the  cus- 
tody of  men  trained  and  paid  for  the  purpose;  and  the  sea, 
upon  which  it  is  sent,  is  res  omnium,  the  common  field  of  war 
as  well  as  of  commerce.  The  objections,  therefore,  that  exist 
to  the  capture  of  private  property  on  land,  do  not  apply  with 
like  force  to  property  at  sea,  yet  the  effect  of  captures  at  sea 
in  deranging  the  trade  of  the  enemy  is  very  much  greater  than 
that  consequent  upon  the  enforcing  of  requisitions,  and  often 
leads  to  urgent  demands  on  the  part  of  influential  merchants 
for  an  early  termination  of  the  war. 

The  effect  of  the  old  general  rule  of  capture  of  all  enemy 

IT  Wheaton.   Int.  Law   (Atlay's  Ed.)  §  P>5'th. 


294  PROPERTY  ON  THE  WATER.  (Ch.  15 

property  was  modified  by  the  Declaration  of  Paris,  to  the  ex- 
tent that  "the  neutral  flag-  covers  enemy's  goods,  with  the  ex- 
ception of  contraband  of  war."  ^^ 

There  are  divergent  opinions  upon  what  determines  the 
enemy  character  of  goods.  The  English  courts  have  decided 
that  the  liability  to  capture  extends,  not  merely  to  the  goods 
of  those  who  owe  allegiance  to  the  belligerent  state,  but  also 
to  those  who  have  commercial  domicile  in  the  belligerent 
state, ^^  while  the  property  of  those  who  are  domiciled  in  a 
neutral  state  is  exempt.^" 

The  European  continental  opinion  is  divided.  Certain  states 
regard  the  domicile  of  the  owner  as  the  test  of  the  liability  of 
the  property  to  capture,  as  in  the  English  precedents ;  while 
other  states  follow  the  French  doctrine,  that  the  nationality 
of  the  owner,  and  not  the  domicile,  determines  the  liability  of 
the  property  to  capture.-^  Japan  has  followed  a  modified 
form  of  the  rule  of  domicile.  The  United  States  has  generally 
followed  the  law  of  domicile  as  determining  enemy  character. 
Long  discussions  at  the  London  Naval  Conference  in  1908-09 
did  not  result  in  agreement  upon  the  basis  which  should  de- 
cide character  of  property,  beyond  the  rule  that  (article  58) 
"the  neutral  or  enemy  character  of  goods  found  on  board  an 
enemy  vessel  is  determined  by  the  neutral  or  enemy  character 
of  the  owner."  The  report  of  the  conference  says:  "But  it 
cannot  be  concealed  that  article  58  solves  no  more  than  a  part 
of  the  problem,  and  that  the  easier  part.  It  is  the  neutral 
or  enemy  character  of  the  owner  which  determines  the  char- 
acter of  the  goods ;  but  what  is  to  determine  the  neutral  or 
enemy  charapter  of  the  owner?  On  this  point  nothing  is  said, 
because  it  was  found  impossible  to  arrive  at  an  agreement."  "- 

The  English  courts  have  decided  that  the  enemy  character 
of  goods  is  determined  by  the  domicile  of  the  owner,  though  a 
man's  business  may  have  domicile  in  more  than  one  state,  and 
^'if  he  acts  as  a  merchant  of  both  he  must  be  liable  to  be  con- 


is  Declaration  of  Paris,  1856.  Appendix,  p.  487. 

19  Ttie  Harmony,  2  C.  Rob.  322, 

20  4  C.  Rob.  255,  note. 

21  1  Pistoye  et  Duverdy,  Traite  des  Prises  Maritimes,  p.  321. 

22  British  Pari.  Papers,  Misc.  No.  4  (1909)  p.  61. 


§  125)  GOODS   IN    GENERAL.  295 

sidered  as  a  subject  of  both,  with  regard  to  the  transactions 
originating  respectively  in  those  countries."  "^  To  the  extent 
to  which  the  property  is  identified  with  the  enemy,  to  that  ex- 
tent it  would  be  treated  as  enemy  property.  Some  other  states 
consider  that  the  nationality  of  the  owner  is  the  sole  criterion 
in  determining  the  character  of  goods. 

Complications  due  to  the  changes  in  methods  of  business, 
by  the  introduction  of  partnerships  and  other  forms  of  busi- 
ness organization,  are  not  provided  for  in  early  precedents. 

The  London  Naval  Conference  in  1908-09  considered  the 
propriety  of  determining  the  neutral  or  enemy  character  of 
goods  belonging  to  a  country  "according  as  the  company  had 
its  headquarters  in  a  neutral  or  enemy  country."  No  decision 
was  reached,  however. 

Some  have  maintained  that  the  products  of  an  enemy  soil 
should  be  considered  as  enemy  property,  though  the  owner 
may  be  a  neutral.  The  United  States  Supreme  Court,  follow- 
ing the  British  doctrine,  announced  that:  "The  opinion  that 
the  ownership  of  the  soil  does,  in  some  degree,  connect  the 
owner  with  the  property,  so  far  as  respects  that  soil,  is  an 
opinion  which  certainly  prevails  very  extensively.  It  is  not 
an  unreasonable  opinion.  Personal  property  may  follow  the 
person  anywhere ;  and  its  character,  if  found  on  the  ocean, 
may  depend  on  the  domicile  of  the  owner.  But  land  is  fixed. 
Wherever  the  owner  of  the  country  may  reside,  that  land  is 
hostile  or  friendly  according  to  the  condition  of  the  country 
in  which  it  is  placed.  It  is  no  extravagant  perversion  to  say 
that  the  proprietor,  so  far  as  respects  his  interest  in  this  land, 
partakes  of  this  character,  and  that  the  produce,  while  the 
owner  remains  unchanged,  is  subject  to  the  sarne  disabili- 
ties." ^*  France  and  some  of  the  other  European  states  do  not 
admit  this  position. 

2  3  The  Jonge  Klassina,  .5  C.  Rob.  302. 

2  4  Bentzon  v.  Boyle,  9  Cranch,  191,  3  L.  Ed.  701 ;  Scott,  598;  Vrouw 
Anua  Cathariua,  5  C.  Rob.  167.    The  Japanese  doctrine  is  similar. 


29G  PROPERTY    ON   THE    WATER.  (Cb.  15 


MEANS    OF    TELEGRAPHIC    COMMUNICATION. 

126.  Means  of  telegraphic  communication  wholly  -w^ithin  the 
jurisdiction  of  either  belligerent  may  be  seized,  inter- 
rupted, or  destroyed  by  the  other  belligerent. 
Means  of  telegraphic  communication  bet\ireen  either  bel- 
ligerent and  a  neutral  may,  outside  of  neutral  juris- 
diction, be  seized,  interrupted,  or  destroyed  by  the  oth- 
er belligerent  as  a  military  necessity,  subject  to  liabil- 
ity for  damages. 

Coniniunication  by  Wires. 

Before  the  invention  of  wireless  telegraphy,  it  had  become 
fairly  well  established  that  telegraph  lines,  whether  on  land 
or  submarine,  connecting  belligerent  points,  were,  when  be- 
yond neutral  jurisdiction,  liable  to  such  treatment  as  military 
expediency  might  suggest. 

Submarine  cables,  connecting  belligerent  with  neutral  points, 
were  liable  to  such  treatment  outside  of  neutral  jurisdiction 
as  the  necessities  of  war  might  require,  though  at  the  close  of 
the  war  damages  might  be  assessed.-^  The  Hague  Conven- 
tion, 1907,  Laws  and  Customs  of  War  on  Land  (article  54), 
provides :  "Submarine  cables  connecting  an  occupied  territory 
with  a  neutral  territory  shall  not  be  seized  or  destroyed  ex- 
cept in  the  case  of  absolute  necessity.  They  must  likewise  be 
restored,  and  compensation  fixed  when  peace  is  made."  -* 

Communication  zvithout  Wires. 

Radio-telegraphy  has  for  many  purposes  ot  war  supplanted 
telegraphy  by  wires.  The  difference  in  range  and  nature  of 
service  of  wireless  telegraphy  has  brought  about  agreements 
among  the  states  as  to  its  use.-'^  The  principles  which  should 
regulate  the  control  of  radio-telegraph  in  time  of  war  are 
not  yet  fully  established.^^     Certain  regulations  were  adopted 

2  5  Wilson,  Submarine  Telegraphic  Cables,  Lectures  U.  S.  Naval 
War  College,  1901;  Scholz,  Krieg  and  Seekabel ;  Jouhannaud,  Les 
cables  sous-marins, 

2  0  Appendix,  p.  544. 

2  7  Berlin  Agreement,  1903;  International  Wireless  Telegraph  Con- 
vention, Boi-lin,  Nov.  3,  190G. 

2  8  Scholz,  Drahtlose  Telegraphie  und  Neutralitilt;  Thonier,  De 
la  Notion  de  Contrebande  de  Guerre,  334;    Rolland,  La  Telegraphie 


§  126)         MEANS    OF   TELEGRAPHIC   COMMUNICATION.  297 

by  the  Hague  Conference  in  1907.  By  these  belhgerents  are 
forbidden  to — 

"(a)  Erect  on  the  territory  of  a  neutral  power  a  wireless 
telegraphy  station  or  other  apparatus  for  the  purpose  of  com- 
municating with  belligerent  forces  on  land  or  sea ; 

"(b)  Use  any  installation  of  this  kind  established  by  them 
before  the  war  on  the  territory  of  a  neutral  power  for  purely 
military  purposes,  and  which  has  not  been  opened  for  the 
service  of  public  messages."  ^® 

The  neutral  is  not,  however,  called  upon  to  restrict  the  use 
of  apparatus  belonging  to  it,  or  to  companies  or  private  in- 
dividuals,^" though  impartiality  must  be  shown  to  both  bellig- 
erents.^^ In  case  of  war  on  the  sea,  belligerents  are  likewise 
forbidden  "to  erect  wireless  telegraphy  stations  or  any  ap- 
paratus for  the  purpose  of  communicating  with  the  belligerent 
forces  on  land  or  sea."  ^~ 

The  Institute  of  International  Law  in  1906  adopted  regula- 
tions which  the  members  regarded  as  embodying  the  principles 
which  should  prevail  in  regard  to  wireless  telegraphy.  While 
enunciating  the  principle  that  the  air  is  free,  the  Institute  ad- 
mitted that  a  state  is  entitled,  both  in  time  of  peace  and  in 
time  of  war,  to  exercise  such  aerial  jurisdiction  as  is  necessary 
to  its  well-being.  A  neutral  state  may  also  become  responsible 
to  the  extent  of  its  ability  for  the  regulation  of  the  use  for 
war  purposes  of  its  aerial  domain. ^^ 

"From  practice,  as  shown  in  various  states,  from  the  opin- 
ions of  the  courts  and  of  writers,  from  the  votes  of  confer- 
ences and  from  international  agreements,  it  is  evident  that 
the  state  within  whose  jurisdiction  a  wireless  telegraph  appara- 
tus is  or  passes  is  and  will  be  authorized  to  exercise  a  degree 

sans  Fil  et  le  Droit  des  Gens,  13  R.  G.  D.  I.  P.  86 ;  Melli,  Die  Draht- 
lose  Telegraphie  im  Internen  Reclit  und  Volkerreclit ;  Int.  Law  Sit- 
uations, U.  S.  Naval  War  College,  1907,  138. 

2  9  Article  III,  Rights  and  Duties  of  Neutral  Powers  and  Persons 
in  Case  of  War  on  Land. 

30  Id.  art.  VIII. 

31  Id.  art.  IX. 

32  Hasiue  Convention,  1907,  Rights  and  Duties  of  Neutral  Powers 
in  Naval  War,  art.  5. 

3  3  For  Regulations  of  Institute,  see  ante,  p.  122. 


298  PROPERTY  ON  THE   WATER.  (Ch.  15 

of  control  over  its  use.  The  responsibility  resting  upon  such 
state  will  be  large. 

"In  order  to  avoid  possible  complications  in  time  of  war,  it 
will  be  expedient  in  time  of  war  for  states,  whether  neutral 
or  belligerent,  to  exercise  control  over  wireless  telegraphy  as 
circumstances  seem  to  require."  ^* 

It  is  admitted  that  a  belligerent  may  prohibit  or  regulate 
the  use  of  radio-telegraphy  within  the  area  of  hostilities,  that 
a  neutral  state  must  use  reasonable  care  that  its  territory  be 
not  abused  for  military  purposes,  that  it  can  make  regulations 
accordingly,  and  that  confiscation  of  wireless  apparatus,  and 
in  some  cases  of  a  vessel  upon  which  the  apparatus  is,  may  re- 
sult from  the  unneutral  use  of  wireless  telegraphy. 

8  4  Int.  Law  Situations,  U.  S.  Naval  War  College,  1907,  p.  175. 


§   127)  MARITIME   CAPTURE.  299 

CHAPTER  XVI. 

MARITIME  CAPTURE. 

127.  Maritime  Capture. 

128.  Title  to  Prize. 

129.  Treatment  of  Prize — Conducting  to  Port. 

130.  Release. 

131.  Appropriation  and  Destruction. 

132.  Prize  Money  and  Bounty. 

133.  Privateers. 

134.  Volunteer,    Auxiliary,    or    Subsidized    Vessels. 

MARITIME    CAPTURE. 

127.  To  constitute  capture,  there  must  be  some  act  sho'oring 
inteution  to  take  possession  upon  the  part  of  the  cap- 
tor and  submission  on  the  part  of  the  captured. 

To  constitute  a  capture  at  sea,  there  must  be  evidence  of 
the  animus  capiendi  and  of  submission.^  The  act  of  taking 
physical  possession  is  not  absolutely  necessary,  because  the 
surrender  of  the  master  and  crew  or  vessel  is  complete  when 
the  flag"  is  lowered,  and  the  conditions  may  be  such  as  to  ren- 
der actual  taking  of  possession  impracticable,^  and  yet  the  con- 
tinuance of  hostilities  under  the  circumstances  may  be  un- 
called for.  The  most  usual  method  of  showing  intention  to 
take  possession  is  to  place  on  board  the  vessel  a  prize  crew 
sufficient  to  prevent  an  attempt  at  rescue. 

The  captor  acquired  property  in  the  things  captured,  accord- 
ing to  the  ancient  practice,  when  things  seized  by  him  were 
brought  into  his  camp,  fortress,  port,  or  fleet.  Later  the  ar- 
bitrary rule  was  laid  down  that  possession   for  twenty-four 

1  The  Mary,  2  Wheat.  123,  4  L.  Ed.  200 ;  The  Alexander,  8  Cranch, 
1G9,  3  L.  Ed.  524;   The  Grotius,  9  Cranch,  368,  3  L.  Ed.  762. 

2  "If  by  reason  of  rough  weather  or  other  circumstances  this  is  im- 
practicable,' the  commander  should  require  the  vessel  to  lower  her 
flag,  and  to  steer  according  to  his  orders."  British  Manual  Naval 
Prize  Law,  No.  238.    Edward  and  Mary,  3  Rob.  305. 


300  MARITIME   CAPTURE,  (Cll.  IG 

hours  was  sufficient  to  transfer  title  to  the  property.^  This 
rule  was  published  in  an  edict  by  France  in  158-1,  and  became 
a  very  general  rule  of  practice  for  the  greater  number  of  civ- 
ilized nations.  Present  practice  seems  to  regard  effective  pos- 
session as  a  satisfactory  and  equitable  evidence  of  capture.* 

If  a  vessel  is  recaptured  before  condemnation,  it  may  be  re- 
stored on  payment  of  salvage;  ^  but,  if  recaptured  after  being 
brought  within  the  effective  possession  of  the  captor's  forces, 
it  is  usually  held  to  belong  to  the  recaptors.  When  a  vessel  is 
recaptured  by  its  original  crew,  salvage  may  be  awarded  to 
them.* 

TITLE   TO    PRIZE. 

128.  Tlie  property  in  a  vessel  and  cargo  that  is  captured,  if 
subsequently  condemned,  vests  in  tlie  state  as  soon  as 
the  seizure  is  effective. 

It  is  the  modern  custom  to  have  all  prizes  sent  into  port  for 
adjudication  before  disposition;  the  object  being  the  protec- 
tion of  neutrals  by  determining  judicially  whether  the  captured 
vessel  and  cargo  are  entirely  enemy  property.  It  is  also  the 
practice  of  some  states  to  relinquish  their  interest  in  prizes 
that  consist  of  vessels  belonging  to  private  individuals  to  the 
captors ;  but  the  relinquishment  does  not  become  effective  un- 
til after  adjudication  by  proper  tribunals.^ 


TREATMENT  OF  PRIZE— CONDUCTING  TO  PORT. 

129.    (a)    Captors  should  care  for  the  persons  and  property  of 
vessels  taken  as  prize, 
(b)    The  prize  should  in  general  be  sent  to  the  nearest  home 
port  nrhere  a  prize  court  is  sitting. 

(a)  The  officer  in  charge  of  a  prize  is  under  obligation  to 
care  for  the  persons  on  the  vessel,  in  order  that  they  may  re- 

3  The  Adeline,  9  Cranch,  244,  3  L.  Ed.  719. 

*  The  Astrea,  1  Wheat.  125,  4  L.  Ed.  52. 

B  Rev.  St.  §  4G52  (U.  S.  Comp.  St.  1001,  p.  3139). 

6  The  Two  Friends,  1  Rob.  271. 

7  United  States  v.  Dewej-,  188  U.  S.  254,  23  Sup.  Ct.  415,  47  L.  Ed. 
463. 


§  129)  TREATMENT   OF   PRIZE.  301 

ceive  proper  treatment.^  They  are  not,  as  formerly,  regarded 
as  enemies.  Special  provision  is  made  for  their  treatment  by 
the  Hague  Convention  of  1907  with  Regard  to  the  Exercise 
of  the  Right  of  Capture  in  Naval  War: 

"Article  V.  When  an  enemy  merchant  ship  is  captured  by 
a  belligerent,  such  of  its  crew  as  are  nationals  of  a  neutral 
state  are  not  made  prisoners  of  war. 

"The  same  rule  applies  in  the  case  of  the  captain  and  of- 
ficers likewise  nationals  of  a  neutral  state,  if  they  promise 
formally  in  writing  not  to  serve  on  an  enemy  ship  while  the 
war  lasts. 

"Article  VI.  The  captain,  officers,  and  members  of  the  crew, 
when  nationals  of  the  enemy  state,  are  not  made  prisoners  of 
war,  on  condition  that  they  make  a  formal  promise  in  writing 
not  to  undertake,  while  hostilities  last,  any  service  connected 
with  the  operations  of  the  war, 

"Article  VII.  The  names  of  the  persons  retaining  their 
liberty  under  the  conditions  laid  down  in  article  V,  paragraph 
2,  and  in  article  VI,  are  notified  by  the  belligerent  captor  to 
the  other  belligerent.  The  latter  is  forbidden  knowingly  to 
employ  the  said  persons. 

"Article  VIII.  The  provisions  of  the  three  preceding  ar- 
ticles do  not  apply  to  ships  taking  part  in  the  hostilities."  ^ 

Special  care  is  enjoined  in  all  regulations,  in  order  that  the 
property  may  be  brought  in  intact  and  without  injury.^** 

(b)  The  general  rule  is,  as  stated  by  the  United  States : 
"Prizes  should  be  sent  in  for  adjudication,  unless  otherwise 

8  British  Manual  of  Naval  Prize  Daw,  No.  249.  Articles  for  Gov- 
ernment of  U.  S.  Navy,  No.  17:  "If  any  person  in  the  navy  strips 
off  the  clothes  of,  or  pillages,  or  in  any  manner  maltreats,  any  per- 
son taken  on  board  a  prize,  he  shall  suffer  such  punishment  as  a 
court-martial  may  adjudge." 

8  Scott,  Peace  Conferences,  p.  284. 

10  British  Manual  Naval  Prize  Law,  No.  247:  "When  any  ship  or 
vessel  shall  be  captured  or  detained,  her  hatches  are  to  be  securely 
fastened  and  sealed,  and  her  lading  and  furniture,  and,  in  general, 
everything  on  board,  are  to  be  carefully  secured  from  embezzlement; 
the  ofBcer  placed  in  charge  of  her  shall  prevent  anything  from  being 
taken  out  of  her  until  she  shall  have  been  tried,  and  sentence  shall 
have  been  passed  on  her  in  a  Court  of  Prize."  Articles  for  Govern- 
ment of  U.  S.  Navy,  No.  16. 


.^02  MARITIME    CAPTURE.  (Ch.  1(> 

directed,  to  the  nearest  home  port  in  which  a  prize  court  may 
be  sitting."  ^^  In  general,  a  vessel  with  prize  is  admitted  to  a 
neutral  port  only  in  case  of  unseaworthiness,  stress  of  weath- 
er, or  want  of  fuel  or  provisions,  and  must  leave  when  the  cir- 
cumstances justifying  its  entry  are  at  an  end.  The  Hague 
Convention  of  1907  makes  provision  for  the  sequestration  of 
prize  in  a  neutral  port  pending  decision  of  the  prize  court. 
The  United  States,  however,  adhered  to  this  convention  un- 
der reservation  of  this  article. ^^ 

SAME— RELEASE. 

130.  (a)  Sometimes  prize  is  released  on  payment  of  ransom, 
-which  consists  in  the  repurchase  by  the  original  ow^ner 
from  the  captor  of  the  property  right  acquired  in  the 
prize. 
(b)  Sometimes  prize  is  released  on  bail,  or  by  consent  of  the 
authorities  of  the  state  making  the  capture. 

(a)  Release  on  payment  of  ransom  is  a  repurchase  of  the 
right  which,  at  the  time,  the  captors  have  to  the  property.^' 

11  General  Order  492,  No.  IG,  U.  S.  Navy  Departraeut,  June  20, 
1S9S;   Rev.  St.  §  4617  (U.  S.  Comp.  St.  1901,  p.  3127). 

12  "Article  XXI.  A  prize  may  only  be  brought  into  a  neutral  port 
on  account  of  unseaworthiness,  stress  of  weather,  or  want  of  fuel 
or  provisions. 

"It  must  leave  as  soon  as  the  circumstances  which  justified  its 
entry  are  at  an  end.  If  it  does  not,  the  neutral  power  must  order 
it  to  leave  at  once ;  should  it  fail  to  obey,  the  neutral  power  must 
employ  the  means  at  its  disposal  to  release  it  with  its  officers  and 
crew  and  to  intern  the  prize  crew. 

"Article  XXII.  A  neutral  power  must,  similarly,  release  a  prize 
brought  into  one  of  its  ports  under  circumstances  other  than  those 
referred  to  in  article  XXI. 

"Article  XXIII.  A  neutral  power  may  allow  prizes  to  enter  its 
ports  and  roadsteads,  whether  under  convoy  or  not,  when  they  are 
brought  there  to  be  sequestrated  pending  the  decision  of  a  prize  court. 
It  may  have  the  prize  taken  to  another  of  its  ports. 

"If  the  prize  is  convoyed  by  a  war  ship,  the  prize  crew  may  go  on 
board  the  convoying  ship. 

"If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at  lib- 
erty." 

Rights  and  Duties  of  Neutral  Powers  in  Naval  War,  Appendix,  p. 
5GG. 

13  Maissonaire  v.  Keating,  2  Gall.  325,  Fed.  Cas.  No.  8,978;  Miller 
V.  Resolution,  2  Dall.  15,  1  L.  Ed.  2G3. 


§  130)  TREATMENT    OF    PRIZE.  303 

The  contract  is  embodied  in  a  "ransom  bill,"  made  out  in  du- 
plicate, one  copy  of  which  is  retained  by  the  commander  of 
the  ransomed  vessel,  and  serves  as  a  safe  conduct,  protecting 
the  vessel  from  recapture  by  the  bellig-erent  or  his  allies,  pro- 
vided he  does  not  voluntarily  depart  from  the  terms  of  the 
agreement,  as  to  the  port  for  which  he  is  to  sail,  as  to  the 
course  to  be  pursued,  or  as  to  the  time  agreed  upon  for  making 
the  voyage.  Protection  is  not  forfeited  in  case  the  vessel  is 
driven  from  her  course  by  stress  of  weather.  The  captor  re- 
tains the  other  copy  of  the  ransom  bill.  He  may  take  from 
the  captured  vessel  a  hostage  for  the  payment  of  the  ransom. 
The  ransom  bill  is  discharged  if  the  vessel  of  the  captor,  with 
the  hostage  and  bill  on  board,  be  captured  by  the  enemy.  If 
the  ransom  bill  and  hostage  are  transmitted  to  a  place  of  safe- 
ty, the  ransom  is  to  be  paid,  even  though  the  captor's  vessel 
be  afterward  captured.  In  certain  countries  the  captor  is  au- 
thorized to  sue  directly  upon  the  bill,  if  the  ransom  is  not  paid. 
In  England  payment  is  compelled  by  or  through  an  action 
brought  by  the  imprisoned  hostage  for  his  freedom.  Some 
states  do  not  favor  the  practice,  others  permit  it  under  re- 
strictions, and  others  place  no  formal  restrictions  upon  it, 
though  it  is  not  now  common.^* 

(b)  Sometimes  prizes  are  released  on  bail  after  a  hearing,^ ^ 
or  released  pending  a  decree  of  the  court,  particularly  if  goods 
which  are  perishable  or  rapidly  deteriorating  are  involved. ^^ 
Release  is  prompt  in  case  of  illegal  capture,  as  when  captures 
are  made  within  neutral  jurisdiction  or  after  conclusion  of 
peace. ^^ 

1*  Power  to  regulate  in  King  and  Council  in  Great  Britain.  St. 
27  &  28  Vict.  c.  25,  §  45.  The  Hoop,  1  Rob.  201 ;  Woolsey,  Int.  Law, 
p.  449. 

15  Tlie  George,  2  Wheat.  278,  4  L.  Ed.  239. 

16  The  Alliance,  Fed.  Cas.  No.  244;  St.  27  &  28  Vict.  c.  2.j,  §  26. 

17  The  Santissima  Trinidad,  7  Wheat.  283,  5  L.  Ed.  454. 


304  MARITIME   CAPTURE.  (Ch.  16 


SAME— APPROPRIATION   AND    DESTRUCTION. 

131.    (a)    Military  necessity  Meill  justify  the  captor  in  appro- 
priating or  in  selling  prize  after  appraisal. 

(b)  The    destruction   of   enemy   vessels   has   been   allow^ed   in 

case  of  military  necessity,  as  unseawrorthiness,  the  pres- 
ence of  infectious  disease,  the  lack  of  a  prize  crew,  or 
the  imminent  danger  of  recapture. 

(c)  As  a  general  rule,  neutral  vessels  ^trhich  have  been  cap- 

tured may  not  be  destroyed  before   adjudication. 

(d)  As  an  exception,  a  neutral  vessel  \srhich  w^ould  be  liable 

to  condemnation  may  be  destroyed  ivhen  taking  her 
into  port  for  adjudication  "xtrould  involve  danger  to  the 
safety  of  the  xp^arship  or  to  the  success  of  the  opera- 
tions in  Tirhich  she  is  at  the  time  engaged." 

(e)  As   an   exception,    the    captor   may    demand   the   handing 

over,  or  proceed  himself  to  the  destruction,  of  any  goods 
liable  to  condemnation  found  on  board  a  vessel  not  her- 
self liable  to  condemnation,  provided  the  circumstances 
are  such  as  would  involve  danger  to  the  safety  of  the 
war  ship  or  to  the  success  of  the  operations  in  w^hich 
she  is  at  the  time  engaged. 

(a)  The  Instructions  Issued  by  the  Navy  Department  of 
the  United  States  in  the  Spanish-American  War,  1898,  stated 
that :  "The  title  to  property  seized  as  prize  changes  only  by  the 
decision  rendered  by  the  prize  court.  But  if  the  vessel  itself, 
or  its  cargo,  is  needed  for  immediate  public  use,  it  may  be  con- 
verted to  such  use ;  a  careful  inventory  and  appraisal  being 
made  by  impartial  persons  and  certified  to  the  prize  court. 

"If  there  are  controlling  reasons  why  vessels  may  not  be 
sent  in  for  adjudication,  as  unseaworthiness,  the  existence 
of  infectious  disease,  or  the  lack  of  a  prize  crew,  they  may  be 
appraised  and  sold."  ^* 

Provision  for  appropriation  is  also  made  in  the  legislation.^' 
The  United  States  provides  that: 

"Whenever  any  captured  vessel,  arms,  munitions,  or  other 
material  are  taken  for  the  use  of  the  United  States  before  it 
comes  into  the  custody  of  the  prize  court,  it  shall  be  surveyed, 
appraised,  and  inventoried,  by  persons  as  competent  and  im- 

18  Geiwral  Orders  492,  .Tune  20,  1S98,  No.  24. 

19  St.  27  &  28  Vict.  c.  25,  §  38. 


§  131)  TREATMENT   OF   PRIZE.  305 

partial  as  can  be  obtained,  and  the  survey,  appraisement,  and 
inventory  shall  be  sent  to  the  court  in  which  proceedings  are 
to  be  had."  -° 

These  provisions  make  no  distinction  between  enemy  and 
neutral  vessels. 

(b)  The  regulations  of  various  states  have  permitted  the  de- 
struction of  enemy  private  vessels  in  time  of  war  under  cer- 
tain circumstances,  usually  in  cases  of  unseaworthiness,  lack 
of  prize  crew,  too  great  distance  from  prize  court,  presence  of 
infectious  disease,  or  immediate  danger  of  attack  from  the 
enemy.-^  Such  regulations  also  usually  enjoin  that  the  crew 
of  the  destroyed  vessel  should  be  put  in  a  place  of  safety.  It 
may  not  be  easy  to  carry  out  this  regulation  when  the  destroy- 
ing vessel  is  itself  in  immediate  danger  of  attack.  To  take 
the  crew  of  a  merchant  vessel  on  board  at  such  a  time  would 
scarcely  be  to  put  them  in  a  safe  position.  Opinion  seems 
however,  to  be  in  favor  of  allowing  the  destruction  of  enemy 
vessels  under  stress  of  circumstances.  The  Institute  of  Inter- 
national Law  at  its  session  in  1887  drew  up  rules  in  regard  to 
this  matter.^2 

20  Rev.  St.  §  4G24  (U.  S.  Comp.  St.  1901,  p.  3130). 

21  "303.  In  either  of  the  following  cases: 

"(1)  If  the  surveying  officers  report  the  vessel  not  to  be  in  a  con- 
dition to  be  sent  in  to  any  port  for  adjudication ;    or, 

"(2)  if  the  commander  is  unable  to  spare  a  prize  crew  to  navigate 
the  vessel  to  a  port  of  adjudication." 

British  Manual  Naval  Prize  Law. 

2  2  "Sec.  50.  II  sera  permis  au  capteur  de  brftler  ou  de  couler  bas 
le  navire  ennemi  saisi,  apros  avoir  fait  passer  sur  le  navire  de  guerre 
les  personnes  qui  se  trouvaient  a  bord  et  decharge  autant  que  pos- 
sible la  cargaison,  et  apres  que  le  commandant  du  navire  capteur 
aura  pris  a  sa  charge  les  papiers  de  bord  et  les  objets  importants 
pour  I'enquete  judicaire  et  pour  les  reclamations  des  proprietaires  de 
la  cargaison  en  dommanges  et  iuterets  dans  les  cas  suivants. 

"(1)  Lorsqu'il  n'est  pas  possible  de  tenir  le  navire  a,  flot,  a  cause  de 
son  mauvais  etat,  la  mer  etant  houleuse ; 

"(2)  Lorsque  le  navire  marche  si  mal  qu'il  ne  i^eut  pas  suivre  le 
navire  de  guerre  et  pourrait  facilement  etre  repris  par  I'ennemi ; 

"(3)  Lorsque  I'approche  d'une  force  ennemie  superieure  fait  crain- 
dre  la  reprise  du  navire  saisi ; 

"(4)  Lorsque  le  navire  de  guerre  ne  peut  mettre  sur  le  navire  saisi 

WiLS.lNT.L.— 20 


306  MARITIME   CAPTURE.  (Ch.  16 

(c)  Recent  regulations  in  regard  to  destruction  of  prize 
have  made  no  distinction  between  enemy  and  neutral  vessels.^* 
Action  by  Russian  commanders  in  the  Russo-Japanese  War, 
1904,  particularly  the  sinking  of  the  British  steamer.  Knight 
Commander,  though  in  accord  with  Russian  regulations,  kd 

iin  equipage  siiffisant  sans  trop  diminiier  celui  qui  est  n6cessaire  3,  sa 
propre  sQrete ; 

"(5)  Lorsque  le  port  oH  il  serait  possible  de  conduire  le  navire  saisi 
est  trop  61oigne. 

"Sec.  51.  II  sera  dresse  proees-verbal  de  la  destruction  du  navire 
saisi  et  des  motifs  qui  I'ont  amenee;  se  proees-verbal  sera  transmis 
k  I'autoritg  superieure  militaire  et  au  tribunal  d'instruction  le  plus 
proche,  lequel  examinera  et,  au  beeoin,  completera  les  actes  y  relatifs 
et  les  transmettra  au  tribunal  des  prises." 

9  Auuuaire  de  I'lnstitut  de  Droit  Internatioual,  228. 

23  "28.  If  there  are  controlling  reasons  why  vessels  may  not  be 
sent  in  for  adjudication,  as  unseaworthiness,  the  existence  of  infec- 
tious disease,  or  the  lack  of  a  prize  crew,  they  may  be  appraised  and 
sold ;  and  if  this  cannot  be  done  they  may  be  destroyed.  The  im- 
minent danger  of  recapture  would  justify  destruction,  if  there  was 
no  doubt  that  the  vessel  was  good  prize.  But,  in  all  such  cases,  all 
the  papers  and  other  testimony  should  be  sent  to  the  prize  court,  in 
order  that  a  decree  may  be  duly  entered." 

General  Order  492,  U.  S.  Navy  Dept.,  June  20,  1898. 

"Article  XCI.  In  the  following  cases,  and  when  it  is  unavoidable, 
the  captain  of  the  man  of  war  may  destroy  a  captured  vessel,  or  dis- 
pose of  her  according  to  the  exigency  of  the  occasion.  But  before  so 
destroying  or  disposing  of  her  he  shall  transship  all  persons  on  board 
and,  as  far  as  possible,  the  cargo  also,  and  shall  preserve  the  ship's 
papers  and  all  other  documents  required  for  judicial  examination: 

"1.  When  the  captured  vessel  is  in  very  bad  condition  and  can- 
not be  navigated  on  account  of  the  heavy  sea. 

"2.  When  there  is  apprehension  that  the  vessel  may  be  recaptured 
by  the  enemy. 

"3.  When  the  man  of  war  cannot  man  the  prize  without  so  reduc- 
ing her  own  complement  as  to  endanger  her  safety." 

Japanese  Regulations  Governing  Captures  at  Sea,  March  7,  1904. 

"21.  In  extraordinary  cases,  when  the  preservation  of  a  detained 
vessel  proves  impossible  in  consequence  of  its  bad  condition  or  ex- 
tremely small  value  (sic),  the  danger  of  its  recapture  by  the  enemy, 
or  the  considerable  distance  or  blockade  of  the  ports,  as  well  as  of 
danger  threatening  the  detaining  vessel  or  the  success  of  its  opera- 
tions, the  naval  commander  is  permitted,  on  his  personal  responsibil- 
ity, to  burn  or  sink  the  detained  vessel  after  having  first  taken  all 
the  people  off  it,  and  as  far  as  possible  the  cargo  on  board,  and  also 


§  131)  TREATMENT   OF   PRIZE.  307 

to  vigorous  protests  from  neutrals.-*  On  August  5,  1905, 
Russia  issued  supplementary  instructions  restricting  the  de- 
struction of  neutral  merchant  vessels.^^  In  case  of  destruc- 
tion of  a  neutral  vessel  before  condemnation,  it  was  uniformly 
held  that  the  captor  was  liable,  not  merely  for  costs,  but  also 
for  damages.^®  The  general  tendency  among  neutrals  to  close 
their  ports  to  belligerents  with  prize  makes  the  problem  of  dis- 
position of  prize  after  capture  much  more  difficult.  Opinion 
upon  destruction  was  so  divided  that  the  Hague  Conference  of 
1907  was  not  able  to  reach  a  conclusion  upon  the  matter. 

The  subject  of  destruction  of  neutral  vessels  prior  to  con- 
demnation was  made  one  of  the  subjects  for  the  International 
Naval  Conference  of  1908-09.  The  ten  naval  powers  repre- 
sented at  this  conference  were  divided  in  opinion — some  favor- 
ing great  freedom  in  destruction;  others  favoring  absolute 
prohibition  of  destruction  before  condemnation.  All  at  length 
favored  the  enunciation  of  the  general  rule  prohibiting  destruc- 
tion which  appears  as  article  48  of  the  Declaration  of  London, 
February  26,  1909 : 

"A  captured  neutral  vessel  is  not  to  be  destroyed  by  the  cap- 
tor, but  must  be  taken  into  such  port  as  is  proper,  in  order  to 


after  having  taken  measures  for  preserving  the  documents  and  other 
objects  on  board,  and  which  might  prove  essential  in  elucidating  mat- 
ters when  the  case  is  examined  according  to  the  method  prescribed 
for  pri2;e  cases."  Russian  Prize  Regulations,  March  25,  1895. 

24  British  Parliamentary  Papers,  Russia,  No.  1  (1905) ;  Foreign 
Relations  U.  S.  1904,  p.  734. 

2  5  "Russian  vessels  were  not  to  sink  neutral  merchantmen  with 
contraband  on  board  in  the  future,  except  in  case  of  direct  necessity, 
but  in  case  of  emergency  to  send  prizes  into  neutral  ports." 

Cases  of  destruction  have  received  much  attention.  See  Lawrence, 
War  and  Neutrality  in  the  Far  East,  p.  250;  Smith  &  Sibley,  Int. 
Law  during  Russo-Japanese  War,  pp.  186,  465 ;  Hershey,  Int.  Law 
and  Diplomacy  during  Russo-Japanese  War,  pp.  136,  142,  156;  Tak- 
ahashi.  Int.  Law  during  Russo-Japanese  War,  p.  310. 

26  "The  general  rule,  therefore,  is  that  If  a  ship  under  neutral 
colors  be  not  brought  to  a  competent  court  for  adjudication  the  claim- 
ants are,  as  against  the  captor,  entitled  to  costs  and  damages.  In- 
deed, if  the  captor  doubt  his  power  to  bring  a  neutral  ve.«sel  to  ad- 
judication, it  is  his  duty  to  release  her."  The  Leucade,  Spinks,  217. 
See,  also,  The  Acteon,  2  Dod.  48;   The  Felicity,  2  Dod.  381, 


308  MARITIME   CAPTURE.  (Ch.  16 

determine  there  the  rights  as  regards  the  vahdity  of  the  cap- 
ture." '^ 

(d)  It  was,  however,  found  that  in  practice  exceptions  were 
made  to  the  general  prohihition  of  prize  destruction.  It  was 
admitted  that  when  a  neutral  vessel,  which  would  certainly  be 
condemned,  involved  "danger  to  the  ship  of  war  or  to  the 
success  of  the  operations  in  which  she  was  at  the  time  en- 
gaged," the  neutral  vessel  might  be  destroyed.  The  provision 
of  the  Declaration  of  London  was  as  follows : 

"Article  49.  As  an  exception,  a  neutral  vessel  which  has 
been  captured  by  a  belligerent  ship,  and  which  would  be  liable 
to  condemnation,  may  be  destroyed  if  the  observance  of  ar- 
ticle 48  would  involve  danger  to  the  safety  of  the  ship  of  war 
or  to  the  success  of  the  operations  in  which  she  is  at  the  time 
engaged." 

The  crew  and  persons  on  board  and  the  ship's  papers  must 
be  placed  in  safety.  The  destruction  of  neutral  prizes  is  more 
fully  discussed  under  section  185,  page  412. 

(e)  Article  54  of  the  Declaration  of  London  provides  that : 
"The  captor  has  the  right  to  require  the  giving  up,  or  to 

proceed  to  destroy,  goods  liable  to  condemnation  found  on 
board  a  vessel  which  herself  is  not  liable  to  condemnation,  pro- 
vided that  the  circumstances  are  such  as,  according  to  article 
49,  justify  the  destruction  of  a  vessel  liable  to  condemnation. 
The  captor  enters  the  goods  delivered  or  destroyed  in  the  log 
book  of  the  vessel  stopped,  and  must  procure  from  the  master 
duly  certified  copies  of  all  relevant  papers.  When  the  giving 
up  or  destruction  has  been  completed,  and  the  formalities  ful- 
filled, the  master  must  be  allowed  to  continue  his  voyage." 

The  captor  is  liable  to  damages  if  he  has  not  full  justifica- 
tion for  his  action,  as  under  the  provisions  for  destruction  of 
vessels.^* 

2  7  Declaration  of  London,  February  26,  1909,  art.  48,  Appendix,  p.  581. 
See,  also,  British  Parliamentary  Papers,  Miscellaneous  No.  4  ajid 
No.  5  (1909). 

28  Id.  c.  IV,  p.  582. 


132)  PRIZE   MONEY   AND   BOUNTY.  309 


PRIZE   MONEY   AND    BOUNTY. 

132.    (a)   The  proceeds  of  prize  capture  after  condemnation  are 
sometimes  distributed  among  the  captors. 

(b)  The  distribution  may  be  according  to  statutory  regula- 

tion,   or   in    absence    of    such    regulation   according    to 
precedent  or  general  principles. 

(c)  Bounty  is  sometimes  alloxired  w^hen  vessels  are  sun^  or  de- 

stroyed before  adjudication. 

(a)  The  policy  in  regard  to  distribution  of  the  proceeds  of 
prize  capture  among  those  participating  in  the  capture  has 
varied,  but  since  the  seventeenth  century  has  been  generally 
allovi^ed  and  regarded  as  a  stimulus  for  those  engaged  in  war.^* 
It  is  still  allowed  by  most  states,^**  but  v^as  abolished  in  the 
United  States  after  the  Spanish-American  War.'^  By  those 
who  regard  the  object  of  naval  war  as  the  destruction  of  the 
enemy's  naval  strength,  the  diversion  of  attention  to  capture 
for  the  sake  of  prize  money  is  considered  contrary  to  good 
military  policy. 

(b)  The  distribution  of  prize  money  is  usually  determined 
by  municipal  regulation,  and  as  a  general  principle,  in  absence 
of  regulations,  vessels  participate  in  the  proceeds  of  prize  in 
proportion  to  their  participation  in  the  capture.  Those  vessels 
within  "signal  distance,"  in  condition  "to  render  effective  aid 
if  required,"  are  usually  entitled  to  share.  The  question  as  to 
what  constitutes  "signal  distance"  has  always  given  rise  to  dif- 
ficulties,^^ which  may  be  multiplied  by  the  introduction  of 
radio-telegraph.  How  far  different  vessels  and  land  forces, 
and  in  what  proportion  different  grades  of  officers  and  mem- 


28  4  Dods.  p.  316,  note. 

30  Determined  in  Great  Britain  according  to  Royal  Proclamation, 
August  3,  1886. 

31  "All  provisions  of  law  authorizing  the  distribution  among  cap- 
tors of  the  whole  or  any  portion  of  the  proceeds  of  vessels,  or  any 
property  hereafter  captured,  condemned  as  prize,  or  providing  for 
the  payment  of  bounty  for  the  sinking  or  destruction  of  vessels  of 
the  enemy  hereafter  occurring  in  time  of  war,  are  hereby  repealed." 
Act  March  3,  1899,  30  Stat.  1007  (U.  S.  Comp.  St.  1901,  p.  1072). 

82  The  Mangrove,  188  U.  S.  720,  23  Sup.  Ct.  343,  47  L.  Ed.  6G4. 


r>lO  maritime:  capture.  (Ch.  10 

bers  of  the  crew,  are  entitled  to  participate,   are   questions 
which  have  received  much  consideration.''^ 

(c)  "When  captors  take  a  lawful  prize,  they  have  alterna- 
tive duties — to  save  it,  if  practicable;  to  destroy  it,  if  it  be 
impracticable  to  save  it.  The  first  duty  insures  prize  money 
and  other  elements  of  the  right  existing;  the  second  duty  in- 
volves the  sacrifice  of  prize  money,  and  the  pecuniary  reward 
is  in  the  form  of  bounty."  ^* 


PRIVATEERS. 

133.  A  private  armed  vessel,  ovrned  and  officered  by  private 
persons,  acting  under  a  commission  from  the  state,  ivas 
called  a  "privateer." 

The  practice  of  commissioning  private  vessels  for  service 
in  war  seems  to  have  prevailed  in  the  beginning  of  the  fif- 
teenth century. 

The  term  "privateer"  seems  to  have  been  used  in  the  time 
of  Charles  II  of  England  to  designate  a  private  vessel  em- 
ployed by  the  admiralty  to  prey  upon  an  enemy.  Fifty  years 
later,  in  the  early  eighteenth  century,  they  were  not  much  re- 
garded, "because  the  manner  of  such  warring  is  new  and  not 
very  honorable ;  but  the  diligence  of  our  enemies  in  this  pirat- 
ical way  obliges  us  to  be  also  diligent  for  the  preservation  of 
our  commerce."  ^° 

3  3  Dewey  v.  United  States,  178  U.  S.  510,  20  Sup.  Ct.  981,  44  L. 
FM.  1170 ;  United  States  v.  Dewey,  188  U.  S.  254,  23  Sup.  Ct.  415,  47 
L.  Ed.  463. 

Britisti  Royal  Proclamation  of  August  3,  1886,  allowed,  with  many 
possibilities  of  modification: 

Flag  officer  or  officers,  one-thirtieth, 

Captains  or  commanding  officers,  one-tenth  of  remainder. 

Remainder  of  ship's  company  divided  into  eleven  classes,  members 
of  the  lowest  class,  as  signal  boy,  to  receive  one  share  and  the  high- 
est class,  as  staff  captain,  to  receive  forty-five  shares. 

Prize  Act  U.  S.  1864,  §  10,  provided  that  admiral  should  receive 
one-twentieth. 

34  The  Santo  Domingo  (D.  C.)  119  Fed.  386 ;  United  States  v.  Tay- 
lor, ISS  U.  S.  283,  23  Sup.  Ct.  412,  47  L.  Ed.  477. 

3  5  Sea  Laws,  p.  472. 


§  133)  PKIVATEERS.  311 

Sweden  in  1675  made  a  treaty  with  the  United  Provinces 
mutually  forbidding  privateering.  The  United  States  made  a 
similar  treaty  with  Prussia  in  1785.  Article  XXIII:  "If  war 
should  arise  between  the  two  contracting  parties,  *  *  * 
neither  of  the  contracting  powers  shall  grant  or  issue  any 
commission  to  any  private  armed  vessels,  empowering  them 
to  take  or  destroy  such  trading  vessels  or  interrupt  such  com- 
merce." On  the  renewal  of  the  treaty  in  1799  this  clause  was 
omitted.  Franklin,  who  negotiated  the  treaty  of  1785,  strove 
earnestly  for  the  abolition  of  privateering  and  for  the  exemp- 
tion of  private  property  from  capture.  There  were  many 
laws  and  treaties  forbidding  resort  to  privateering,  but  it 
did  not  disappear.  In  1856  the  Declaration  of  Paris  provided: 
"Privateering  is  and  remains  abolished."  The  United  States 
was  willing  to  adhere  to  this  Declaration,  provided  there  was 
added  a  clause  "that  the  private  property  of  the  subjects  or 
citizens  of  a  belligerent  on  the  high  seas  shall  be  exempted 
from  seizure  by  public  armed  vessels  of  the  other  belligerent, 
unless  it  be  contraband."  This  clause  was  not  added.  The 
United  States,  Spain,  Mexico,  and  China  were  among  the  im- 
portant states  which  did  not  adhere  to  the  Declaration.^^  The 
United  States  did,  however,  declare  at  the  outbreak  of  the 
Spanish-American  War  in  1898  that  the  government  would 
not  resort  to  privateering.^^  Spain  declared  on  the  23d  of 
April,  1898,  that  she  retained  her  right  to  issue  letters  of 
marque,  yet  that  she  would  "organize  for  the  present  a  service 
of  auxiliary  cruisers  of  the  navy,  composed  of  ships  of  the 
Spanish  mercantile  navy,  which  will  co-operate  with  the  latter 
for  the  purposes  of  cruising,  and  which  will  be  subject  to  the 

3  6  Spain  defluitely  adhered  to  the  Declaration  of  Paris  January  18, 
190S,  and  Mexico  on  February  13,  1909. 

3  7  "Whereas,  by  an  act  of  Congress  approved  April  25,  1898,  it  is 
declared  that  war  exists  and  that  war  has  existed  since  the  21st  day 
of  April,  A.  D.  1S9S,  including  said  day,  between  the  United  States 
of  America  and  the  kingdom  of  Spain ;    and 

"Whereas,  it  being  desirable  that  such  war  should  be  conducted 
upon  principles  in  harmony  with  the  present  views  of  nations  and 
sanctioned  by  their  recent  practice,  it  has  already  been  announced 
that  the  policy  of  this  government  will  be  not  to  resort  to  privateer- 
ing, but  to  adhere  to  the  rules  of  the  Declaration  of  Paris." 

Foreign  Relations  U.  S.  1898,  p.  772, 


312  MARITIME   CAPTURE.  (CL.  IG 

statutes  and  jurisdiction  of  the  navy."  Spain  did  not  use 
privateers  during  the  war.  It  may  be  said  that  at  present 
there  seems  to  be  Httle  tendency  to  return  to  privateering. 
The  vokmteer  and  auxiliary  navy  make  it  possible  for  a  state 
to  utilize  its  resources  in  an  efficient  and  reg^ulated  manner. 


VOLUNTEER,   AUXILIARY,    OR    SUBSIDIZED    VESSELS. 

134.  'Wliile  privateering  is  abolished,  the  private  vessels  of 
a  state  have  by  various  plans  been  brought  into  public 
service  in  time  of  ^var  as  volunteer,  auxiliary,  or  sub- 
sidized vessels.^s 

As  a  general  proposition  it  may  be  maintained  that  a  state 
should  be  allowed  to  use  its  resources  to  protect  itself  in  time 
of  war  and  to  preserve  its  existence.  On  land  a  militia  is  re- 
garded as  a  perfectly  legitimate  aid  to  the  regular  army,  and 
in  extreme  cases  the  levies  en  masse  are  recognized  as  legiti- 
mate hostile  forces.  It  is  not  reasonable  to  suppose  that  the 
resources  of  the  belligerent  on  the  sea  will  not  be  summoned 
to  aid  in  the  preservation  of  state  existence.  These  resources 
are  liable  to  attack.  They  will,  so  far  as  possible,  be  called 
into  service.  Horses,  wagons,  railroads,  cars,  telegraphs,  etc., 
are  called  into  service  on  land;  corresponding  agencies  will 
be  called  into  service  on  the  sea. 

The  owners  of  German  vessels  were  invited  by  Prussia, 
during  the  Franco-Prussian  War  of  1870,  to  fit  them  out  for 
attack  upon  French  ships  of  war,  for  which  service  large  pre- 
miums were  offered.^®  The  crews  of  these  vessels  were  to  be 
furnished  by  the  owners  of  the  vessels,  but  were  to  be  under 
naval  discipline.  The  officers  were  to  be  in  the  same  uniform 
as  the  regular  naval  officers,  and  furnished  with  temporary 
commissions.     The  French  government  protested  against  this 

3  8  There  seems  to  be,  however,  no  valid  objection  to  the  employ- 
ment in  war  of  vessels  of  the  mercantile  marine,  provided  that  they 
shall  have  been  duly  incorporated  into  the  belligerent  navy,  that 
their  officers  hold  naval  commissions,  and  that  they  are  under  naval 
orders  and  discipline.  Report  Royal  Commission  on  Supply  of  Food 
and  Raw  Material  in  Time  of  War,  1905,  vol.  I,  p.  22;  The  Panama, 
176  U.  S.  535,  20  Sup.  Ct.  480,  44  L.  Ed.  577. 

3  9  Royal  Prussian  Decree,  July  24,  1870. 


§  134)  VOLUNTEER,  AUXILIARY,  ETC.,  VESSELS.  313 

volunteer  navy  as  being  a  violation  of  the  treaty  of  Paris, 
which  abolished  privateers;  but  the  English  government 
found  that  there  were  substantial  differences  between  the  pro- 
posed vessels  and  those  against  which  the  Declaration  of  Paris 
was  directed.*" 

The  objection  to  the  continuance  of  privateering  was  large- 
ly due  to  the  lack  of  government  control  over  those  engaged 
in  the  practice.  This  control  is  easily  exercised  over  those 
aiding  in  military  operations  on  land,  because  a  representa- 
tive of  the  government  is  usually  at  hand  to  direct  the  move- 
ments. 

An  equal  degree  of  control  may  be  exercised  in  the  case 
of  volunteer,  auxiliary,  and  subsidized  vessels  maintained  by  a 
government,  officered  and  manned  by  the  paid  servants  of  that 
government,  and  operated  under  its  direction.  The  use  of 
such  vessels  is  a  matter  of  great  importance,  and  there  seems 
to  be  no  reasonable  objection  to  their  employment  for  any 
and  all  purposes  of  naval  warfare,  provided  that  the  proper 
degree  of  government  control  is  maintained. 

Several  states  have  volunteer,  auxiliary,  or  subsidized  ves- 
sels at  the  present  time.  The  conditions  under  which  these 
vessels  are  bound  to  the  respective  states  vary,  and  the  obli- 
gations resting  on  the  vessels  also  vary. 

Russia,  fearing  a  possible  conflict  in  consequence  of  the 
situation  in  the  East  in  1877-78,  considering  that  her  regular 
fleet  would  not  be  adequate  and  that  her  merchant  marine 
did  not  possess  vessels  easily  convertible  into  vessels  suit- 
able for  warlike  purposes,  readily  adopted  the  plan  of  incor- 
porating into  the  naval  force  certain  vessels  purchased  by  a 
private  association  of  patriotic  citizens.  These  vessels  were 
to  be  under  the  control  of  the  naval  authorities  and  to  be  offi- 
cered by  naval  commanders.  The  captain  and  at  least  one 
other  oflicer  on  each  ship  is  a  regular  imperial  commissioned 
officer.  These  vessels  are  equipped  so  as  to  be  convertible  at 
once  into  vessels  for  warlike  use.  In  time  of  peace  these 
vessels  are  principally  engaged  in  public  service,  though  they 
fly  the  merchant  flag  and  are  privately  owned. 

France  has  a  direct  arrangement  with  certain  companies 

40  6  British  State  Papers,  692. 


314  MAUITIME   CAPTURE.  (Cll.  16 

whereby  vessels  are  constructed  on  plans  approved  by  the 
admiralty  which  make  possible  the  conversion  of  these  ves- 
sels into  vessels  for  warlike  use.  The  vessels  are  commanded 
by  officers  of  the  navy.  At  the  opening  of  hostilities  they  may 
be  incorporated  in  the  war  fleet. 

Great  Britain  in  1887  concluded  agreements  with  several 
important  steamship  companies.  In  return  for  an  annual  sub- 
sidy, these  companies  agree  in  time  of  war  to  turn  over  certain 
last  vessels  at  an  appraised  valuation  and  to  build  ships  on 
plans  approved  by  the  admiralty.  As  the  law  officers  of  the 
British  crown  were  consulted  in  regard  to  the  legality  of  the 
plans  of  Prussia  for  a  volunteer  navy  in  1870,  it  may  be  sup- 
posed that  the  agreement  made  in  1887  by  the  British  govern- 
ment does  not  fail  to  meet  the  requirements  of  legality. 

By  the  act  of  May  10,  1892,  after  provisions  in  regard  to 
registration,  tonnage,  speed,  ownership,  etc.,  it  is  provided  in 
section  4  as  follows  : 

"That  any  steamship  so  registered  under  the  provisions  of 
this  act  may  be  taken  and  used  by  the  United  States  as  cruisers 
or  transports  upon  payment  to  the  owners  of  the  fair  actual 
value  of  the  same  at  the  time  of  the  taking,  and  if  there  shall 
be  a  disagreement  as  to  the  fair  actual  value  at  the  time  of 
taking  between  the  United  States  and  the  owners,  then  the 
same  shall  be  determined  by  two  impartial  appraisers,  one  to 
be  appointed  by  each  of  said  parties,  who,  in  case  of  disagree- 
ment, shall  select  a  third,  the  award  of  any  two  of  the  three 
so  chosen  to  be  final  and  conclusive."  *^ 

The  question  of  commissioning  and  regulating  the  activities 
of  volunteer  vessels  was  raised  and  discussed  in  consequence 
of  the  action  in  1901  of  the  Smolensk  and  the  Peterburg  of  the 
Russian  volunteer  fleet. ^^ 

The  Hague  Conference  of  1907  considered  the  question  of 
the  conversion  of  merchant  ships  into  war  ships  and  adopted 
a  convention  upon  this  subject: 

41  27  Stat.  27  (U.  S.  Comp.  St.  1901,  p.  2806). 

4  2  Int.  Law  Topics  and  Discussions,  1906,  U.  S.  Naval  War  Col- 
lege, 105;  Hersliey,  Int.  Law  and  Diplomacy,  Russo-Japanese  War. 
136;  Lawrence.  War  and  Neutrality  in  Far  East  (2d  Ed.)  204;  Smitli 
&  Sibley,  Int.  Law  during  Russo-Japanese  War,  40. 


§  134)  VOLUNTKER    AUXILIARY,  ETC.,  VESSELS.  315 

"Article  I.  A  merchant  ship  converted  into  a  war  ship  can- 
not have  the  rights  and  duties  accruing-  to  such  vessels,  unless 
it  is  placed  under  the  direct  authority,  immediate  control,  and 
responsibility  of  the  power  whose  flag  it  flies. 

"Article  II.  Merchant  ships  converted  into  war  ships  must 
bear  the  external  marks  which  distinguish  the  war  ships  of 
their  nationality. 

"Article  III.  The  commander  must  be  in  the  service  of 
the  state  and  duly  commissioned  by  the  competent  authorities. 
His  name  must  figure  on  the  list  of  the  officers  of  the  fighting 
fleet. 

"Article  IV.  The  crew  must  be  subject  to  military  disci- 
pline. 

"Article  V.  Every  merchant  ship  converted  irrto  a  war 
ship  must  observe  in  its  operations  the  laws  and  customs  of 
wars. 

"Article  VI.  A  belligerent  who  converts  a  merchant 
ship  into  a  war  ship  must,  as  soon  as  possible,  announce  such 
conversion  in  the  list  of  war  ships." 

This  convention  embodies  and  makes  more  definite  the 
principles  which  have  been  generally  followed  in  practice 
since  1870,  when  Germany  made  her  propositions  in  regard 
to  a  voluntary  naval  force.  It  regulates  somewhat  more  care- 
fully the  use  of  such  vessels  after  they  are  enrolled  in  the 
public  forces.  Many  questions  arose  at  the  Hague  Confer- 
ence of  1907  which  made  impossible  the  formulation  of  gen- 
erally acceptable  rules  on  all  points  in  regard  to  the  conver- 
sion of  merchant  ships  into  war  ships.  Some  of  the  delegates 
were  absolutely  opposed  to  conversion  except  in  a  home  port. 
While  some  of  the  delegates  were  generally  opposed  to  con- 
version on  the  high  seas,  they  wished  to  make  exceptions  in 
favor  of  merchant  vessels  which  had  left  national  ports  be- 
fore the  outbreak  of  hostilities,  and  in  favor  of  the  conver- 
sion of  merchant  vessels  captured  from  the  enemy  on  the  high 
sea  and  adapted  to  warlike  use.  Some  thought  that  the  abo- 
lition of  capture  of  private  property  at  sea  would  lead  a  bel- 
ligerent to  change  a  ship  from  a  war  status  to  a  merchant 
status,  if  in  danger  of  capture,  in  order  to  bring  it  under  the 
exemption.      Great   freedom   of   conversion  and   reconversion 


316  MARITIME   CAPTURE.  (Ch.  16 

was  favored  by  a  few  of  the  delegates.  The  need  that  the 
character  of  a  vessel  be  clear  to  a  neutral  was  generally  main- 
tained. 

Upon  the  question  justly  regarded  as  the  most  difficult,  "the 
question  whether  the  conversion  of  a  merchant  ship  into  a  war 
ship  may  take  place  upon  the  high  seas,"  the  contracting 
powers  have  been  unable  to  come  to  an  agreement.  As  the 
preamble  of  the  seventh  convention  states,  "the  question  of 
the  place  where  such  conversion  is  effected  remains  outside 
of  the  scope  of  this  agreement"  and  is  in  no  way  affected  by 
its  rules.  Thus  it  is  evident  that,  while  provision  is  made  for 
the  abolition  of  the  evils  of  privateering,  there  remains  for  a 
later  conference  the  agreement  upon  such  difficult  questions 
as  those  of  conditions  under  which  a  converted  vessel  may  be 
reconverted  into  a  war  vessel  and  the  place  where  conversion 
and  reconversion  may  be  allowed.*^ 

The  questions  of  conversion  and  reconversion  were  again 
considered  in  the  International  Naval  Conference' of  1908-09, 
but  it  was  not  possible  to  reach  a  solution  which  would  com- 
mand general  support. 

43  Wilson,  Conversion  of  Merchant  Ships  into  War  Ships,  2  A.  J.  1. 
271. 


I  135)  RULES  OF  WAR.  317 

CHAPTER  XVII. 

RULES  OF  WAR. 

135.  Regulation  of  Belligerent  Action. 

136.  Prohibited   Means. 

137.  Prohibited  Methods. 

138.  Special  Regulations— Bombardment. 

139.  Submarine  Mines  and  Torpedoes. 

140.  Discharge  of  Projectiles  and  Explosives  from  Balloons. 

141.  Spies. 

REGULATION    OF   BELLIGERENT   ACTION. 

135.  In  modern  times  the  range  of  permissible  belligerent  ac- 
tion has  been  gradually  defined  by  domestic  regula- 
tions, by  special  conventions,  and  by  general  conven- 
tions. 

In  early  times  there  was  little  or  no  restriction  upon  what 
•one  belligerent  might  do  to  his  opponent. 

It  is  now  customary  for  states  to  issue  regulations  to  their 
forces  for  the  conduct  of  hostilities,  as  was  done  by  both  par- 
ties to  the  Russo-Japanese  War  of  1904.  A  Japanese  regula- 
tion in  regard  to  procedure  in  capturing  vessels  (article  XLII) 
states  that :  "The  boarding  officer,  before  he  leaves  the  vessel, 
shall  ask  the  master  whether  he  has  any  complaint  regardmg 
the  procedure  of  visiting  or  searching,  or  any  other  points,  and 
if  the  master  makes  any  complaints  he  shall  request  him  to 
produce  them  in  writing." 

There  are  also  treaties  between  different  states  in  which 
certain  articles  are  inserted  with  special  reference  to  the  reg- 
ulation of  hostilities.^  At  the  Hague  Peace  Conferences  of 
1899  and  1907,  and  at  the  International  Naval  Conference  at 
London  in  1908-09,  general  conventions  for  the  regulation  of 
hostilities  were  agreed  upon  and  to  these  many  states  have  ad- 
hered. There  are  thus  at  the  present  time  generally  recognized 
rules  for  the  conduct  of  hostilities.^ 

1  Treaty  between  United  States  and  Italy,  1871. 

2  See  Conventions  in  Appendices. 


318  RULES  OF  WAR.  (Cb.  17 

Gradually  there  arose  a  feeling,  stimulated  by  the  influence 
of  the  age  of  chivalry,  that  even  the  conduct  of  war  should 
be  regulated.  Provisions  of  treaties  were  drawn  with  view 
that  they  should  become  effective  on  the  outbreak  of  war. 
States  made  declarations  in  regard  to  the  course  which  they 
would  pursue  under  given  circumstances.  The  necessity  of 
fixed  rules  was  particularly  evident  during  the  early  years  of 
the  Civil  War  in  the  United  States.  Vast  armies  were  gath- 
ered. Many  leaders  were  naturally  unacquainted  with  the 
laws  and  customs  of  war,  and  the  decisions  in  different  parts 
of  the  great  area  of  operations  were  often  conflicting.  After 
two  years  of  warfare  the  Secretary  of  War  requested  Profes- 
sor Francis  Lieber  to  prepare  a  code  of  rules  for  the  use  of 
the  armies.  There  were  not  at  that  time  conventional  agree- 
ments as  to  the  rules  of  warfare.  Dr.  Lieber  prepared  a  body 
of  rules  numbering  one  hundred  and  fifty-seven.  These  ar- 
ticles were  submitted  to  a  board  of  officers,  and  on  April  24, 
1863,  issued  as  General  Order  No.  100.^  These  rules  were 
particularly  aimed  to  cover  a  condition  of  civil  war.  They 
were,  however,  so  equitable  in  spirit  that  they  have  been  wide- 
ly accepted  as  the  standard  statement  of  what  the  rules  of  war 
upon  land  should  be.  The  rules  published  under  General  Or- 
der No.  100,  in  1863,  as  "Instructions  for  the  Government  of 
Armies  of  the  United  States  in  the  Field,"  were  issued  with- 
out change  for  the  government  of  the  army  of  the  United 
States  in  the  Spanish-American  War  of  1898.  These  rules 
strongly  influenced  the  form  of  later  codes. 

Count  von  Moltke,  on  December  11,  1880,  writing  on  the 
proposed  Oxford  Manual  of  Laws  of  War,  said : 

"Perpetual  peace  is  a  dream,  and  it  is  not  even  a  beautiful 
dream.  War  is  an  element  in  the  order  of  the  world  ordained 
by  God.  In  it  the  noblest  virtues  of  mankind  are  developed — 
courage  and  the  abnegation  of  self,  faithfulness  to  duty,  and 
the  spirit  of  sacrifice.  The  soldier  gives  his  life.  Without 
war  the  world  would  stagnate,  and  lose  itself  in  materialism. 
*  *  *  I  am  of  opinion  that  in  war,  where  everything  must 
be  individual,  the  only  articles  which  will  prove  efficacious  are 
those  which  are  addressed  specifically  to  commanders.     Such 

3  Appendix,  p.  4S8. 


§  136)  PROHIBITED    MEANS.  319 

are  the  rules  of  the  manual  relating  to  the  wounded,  the  sick, 
the  surgeons,  and  medical  appliances." 

In  his  reply  to  Count  von  Moltke's  letter,  Professor  Blunt- 
schli  says : 

"The  administration  of  the  law  of  war  ought  therefore  to 
be  intrusted  primarily  to  the  state  which  wields  the  public 
power  in  the  place  where  an  offense  is  committed.  No  state 
will  lightly,  and  without  unpleasantness  and  danger,  expose 
itself  to  a  just  charge  of  having  neglected  its  international  du- 
ties. It  will  not  do  so  even  when  it  knows  that  it  runs  no  risk 
of  war  on  the  part  of  neutral  states.  Every  state,  even  the 
most  powerful,  will  gain  sensibly  in  honor  with  God  and  man 
if  it  is  found  to  be  faithful  and  sincere  in  respect  and  obedi- 
ence to  the  law  of  nations. 

"Should  we  be  deceiving  ourselves  if  we  admitted  that  a 
belief  in  the  law  of  nations,  as  in  a  sacred  and  necessary  au- 
thority, ought  to  facilitate  the  enforcement  of  discipline  in  the 
army  and  help  to  prevent  many  faults  and  many  harmful  ex- 
cesses? I,  for  my  part,  am  convinced  that  the  error,  which 
has  been  handed  down  to  us  from  antiquity,  according  to 
which  all  law  is  suspended  during  war,  and  everything  is  al- 
lowable against  the  enemy  nation — that  this  abominable  error 
can  but  increase  the  unavoidable  sufferings  and  evils  of  war 
without  necessity,  and  without  utility  from  the  point  of  view 
of  that  energetic  way  of  making  war  which  I  also  think  is 
the  right  way."  * 

Within  twenty  years  from  the  date  of  Count  von  Moltke's 
letter  the  states  of  the  world  had  at  the  Hague  Conference 
agreed  upon  rules  for  warfare  far  more  detailed  than  those 
proposed  in  the  Oxford  Manual. 

PROHIBITED    MEANS. 

136.  In  general  the  prohibited  means  of  injuring  the  enemy 
include — 

(a)  Such  instruments  or  'weapons  as  cause  unnecessary  suf- 
fering. 

Cb)  Such  as  constitute  hidden  peril  or  are  uncertain  in  their 
effect. 

*  Holland,  Letters  on  War  and  Neutrality,  pp.  25-29. 


320  RULES  OF  WAR.  (Ch.  17 

While  in  early  days  it  was  a  maxim  that  "all  was  fair  in 
war,"  this  has  long  since  ceased  to  be  the  case,  and  the  use  of 
certain  instruments  or  means  of  injuring  the  enemy  is  posi- 
tively prohibited.  Means  of  warfare  which  are  new  or  mys- 
terious have  often  been  prohibited  or  looked  upon  with  dis- 
favor for  a  period.^  Maine  says :  "One  of  the  most  curious 
passages  of  the  history  of  armament  is  the  strong  detestation 
which  certain  inventions  of  warlike  implements  have  in  all 
centuries  provoked,  and  the  repeated  attempts  to  throw  them 
out  of  use  by  denying  quarter  to  the  soldiers  who  use  them. 
The  most  unpopular  and  detested  of  weapons  was  once  the 
crossbow,  which  was  really  a  very  ingenious  scientific  inven- 
tion. The  crossbow  had  an  anathema  put  on  it,  in  1139,  by 
the  Lateran  Council,  which  anathematized  artem  illam  morti- 
fera  et  Deo  odibilem.  The  anathema  was  not  without  effect. 
Many  princes  ceased  to  give  the  crossbow  to  their  soldiers, 
and  it  is  said  that  our  Richard  I  revived  its  use  with  the  result 
that  his  death  by  a  crossbow  bolt  was  regarded  by  a  great 
part  of  Europe  as  a  judgment.  It  seems  quite  certain  that 
the  condemnation  of  the  weapon  by  the  Lateran  Council  had 
much  to  do  with  the  continued  English  employment  of  the 
older  weapon,  the  longbow,  and  thus  the  English  successes 
in  the  war  with  France.  But  both  crossbow  and  longbow 
were  before  long  driven  out  of  employment  by  the  musket, 
which  is  in  reality  a  smaller  and  much  improved  form  of  the 
cannon  that  at  an  earlier  date  were  used  against  fortified  walls. 
During  two  or  three  centuries  all  musketeers  were  most  se- 
verely, and  as  we  should  now  think  most  unjustly,  treated. 
The  Chevalier  Bayard  thanked  God  in  his  last  days  that  he 
had  ordered  all  musketeers  who  fell  into  his  hands  to  be  slain 
without  mercy.  He  states  expressly  that  he  held  the  introduc- 
tion of  firearms  to  be  an  unfair  innovation  on  the  rules  of 
lawful  war.  Red-hot  shot  was  also  at  first  objected  to,  but 
it  was  long  doubtful  whether  infantry  soldiers  carrying  the 
musket  were  entitled  to  quarter.  Marshal  Mont  Luc,  who  has 
left  Memoirs  behind  him,  expressly  declares  that  it  was  the 
usage  of  his  day  that  no  musketeer  should  be  spared."  * 

6  Nys,  Les  Origines  du  Droit  Int.  p.  192. 
«  Maine,  Int.  Law,  p.  1S3. 


§  136)  PROHIBITED    MEANS.  321 

(a)  The  use  of  poisoned  weapons  is  generally  prohibited. 
The  use  of  arms  or  projectiles  which  cause  unnecessary  suf- 
fering is  also  prohibited.  Such  projectiles  as  copper  bullets, 
or  explosive  or  expanding  bullets,  are  of  this  class.  Barbed 
bayonets,  lances  with  detachable  heads,  etc.,  are  regarded  as 
instruments  causing  unnecessary  suffering.'^ 

(b)  The  use  of  poison,  the  launching  of  projectiles  from 
balloons,  and  the  use  of  certain  submarine  mines  and  tor- 
pedoes is  contrary  to  conventional  agreements.^ 

A  declaration  which  has  been  signed  by  all  the  states  rep- 
resented at  the  First  Hague  Peace  Conference  except  the 
United  States  is  to  the  effect  that  "the  contracting  powers 
agree  to  abstain  from  the  use  of  projectiles  the  sole  object  of 
which  is  the  diffusion  of  asphyxiating  or  deleterious  gases." 
Captain  (Admiral)  Mahan  explains  the  opposition  to  the  dec- 
laration by  the  United  States  representatives  as  follows : 

"As  a  certain  disposition  has  been  observed  to  attach  odium 
to  the  view  adopted  by  this  commission  in  this  matter,  it  seems 
proper  to  state,  fully  and  explicitly,  for  the  information  of 
the  government,  that  on  the  first  occasion  of  the  subject  aris- 
ing in  subcommittee,  and  subsequently  at  various  times  in  full 
committee  and  before  the  conference,  the  United  States  naval 
delegate  did  not  cast  his  vote  silently,  but  gave  the  reasons, 
which  at  his  demand  were  inserted  in  the  reports  of  the  day's 
proceedings.  These  reasons  were,  briefly:  (1)  That  no  shell 
emitting  such  gases  is  as  yet  in  practical  use,  or  has  undergone 
adequate  experiment,  consequently  a  vote  taken  now  would  be 
taken  in  ignorance  of  the  facts  as  to  whether  the  results  would 
be  of  a  decisive  character,  or  whether  injury  in  excess  of  that 
necessary  to  attain  the  end  of  warfare — the  immediate  dis- 
abling of  the  enemy — would  be  inflicted.  (2)  That  the  re- 
proach of  cruelty  and  perfidy,  addressed  against  these  sup- 
posed shells,  was  equally  uttered  formerly  against  firearms 
and  torpedoes,  both  of  which  are  now  employed  without 
scruple.      Until   we   knew    the   effects   of   such    asphyxiating 

1  Laws  aud  Customs  of  War  on  Land,  article  XXIIT,  Appendix,  p. 
541. 

8  Id. ;     Discharge   of   Projectiles    and  Explosives    from    Balloons, 

post,  p.  326;    Submarine  Contact  Mines,  post,  p.  324. 

WiLS.lNT.L.— 21 


322  RULES  OF  WAR.  (Cll.  17 

shells,  there  was  no  saying  whether  they  would  be  more  or 
less  merciful  than  missiles  now  permitted.  (3)  That  it  was 
illogical  and  not  demonstrably  humane  to  be  tender  about 
asphyxiating  men  with  gas,  when  all  were  prepared  to  admit 
that  it  was  allowable  to  blow  the  bottom  out  of  an  ironclad 
at  midnight,  throwing  400  or  500  into  the  sea,  to  be  choked 
by  water,  with  scarcely  the  remotest  chance  to  escape.  If,  and 
when,  a  shell  emitting  asphyxiating  gases  alone  has  been  suc- 
cessfully produced,  then,  and  not  before,  men  will  be  able  to 
vote  intelligently  on  the  subject."  • 


PROHIBITED    METHODS. 

137.    In  general,  tlie  prohibited  methods  of  injuring  the  enemy 
include — 

(a)  Acts   involving   perfidy   or   treachery. 

(b)  Acts  causing  suflFering  or  damage  disproportionate  to  the 

military  ends  secured. 

(a)  Acts  involving  perfidy  or  treachery  are  in  general  for- 
bidden, though  ruses  of  war  and  deceit  not  involving  perfidy 
are  allowed.^"  It  is  forbidden  to  kill  or  wound  individuals  of 
the  enemy's  forces  by  treachery,  to  misuse  the  flag  of  truce  or 
the  Red  Cross  flag,  or  to  make  false  use  of  the  national  flag 
or  military  insignia  of  the  enemy  in  war  on  land,  though  the 
use  of  enemy  or  of  false  colors  in  maritime  warfare  is  not 
prohibited.  The  prohibition  of  the  use  of  false  colors  at  sea 
has  been  strongly  urged.  ^^ 

(b)  Many  acts  formerly  allowed  are  now  prohibited  as 
causing  suffering  or  damage  disproportionate  to  the  military 
ends  secured.  Such  acts  include  refusal  of  quarter,  killing  of 
enemy  who  has  surrendered,  unnecessary  destruction  of  enemy 
property,  pillage,  confiscation  of  private  property,  or  bombard- 
ment of  undefended  places,  except  in  maritime  war,  when  rea- 
sonable requisitions  are  refused.    The  belligerent  is  forbidden 

»  Holls,  Peace  Conference  at  The  Hague,  p.  494. 

»o  Laws  and  Customs  of  War  on  Land,  articles  XXIII,  XXIV, 
Appendix,  p.  541. 

11  Int.  Law  Topics  and  Discussions,  U.  S.  Naval  War  College,  1906, 
pp.  7-20. 


§  138)  SPECIAL   REGULATIONS.  323 

to  compel  nationals  of  the  enemy  to  take  part  in  war  against 
their  own  state,  to  furnish  information  in  regard  to  the 
means  of  defense,  or  to  swear  allegiance  to  a  hostile  state. 
The  belligerent  is  also  bound  to  respect  the  personal  rights  of 
the  nationals  of  the  enemy  state  as  to  family  honor,  property, 
religion,  etc.  These  prohibitions  are  quite  fully  set  forth  in 
the  Has:ue  Conventions  of  1907. 


SPECIAL    REGULATIONS— BOMBARDMENT. 

138.    (a)    Bombardment  of  undefended  tow^ns  or  buildings  by 
land  forces  is  probibited. 

(b)  Bombardment  of  undefended  toxvns  or  buildings  by  naval 

forces,  except  i^ben  reasonable  requisitions  for  neces- 
sary supplies  are  refused,   is  prohibited. 

(c)  In  all  cases  of  bombardment,  xcrbether  of  defended  or  un- 

defended places,   due   care   should   be   taken  to  restrict 
tbe  action  to  military  ends. 

(a)  The  rules  for  land  warfare  prescribe  that  "the  attack 
or  bombardment,  by  whatever  means,  of  towns,  villages, 
dwellings,  or  buildings  which  are  undefended,  is  prohib- 
ited." 12 

(b)  Similarly  the  bombardment  of  undefended  towns  and 
buildings  by  naval  forces  is  forbidden.  The  presence  of  sub- 
marine contacfmines  off  the  harbor  is  not  regarded  as  sufficient 
cause  for  bombardment.  The  destruction  of  military  re- 
sources by  bombardment,  if  they  cannot  otherwise  be  reached, 
is  permitted.  The  refusal  of  money  contributions  is  not  a 
sufficient  cause  for  bombardment,  though  the  failure  to  comply 
with  a  request  for  a  reasonable  amount  of  supplies  necessary 
at  the  time  may  be  a  cause  for  bombardment  by  naval  forces. ^^ 

(c)  Nonmilitary  buildings,  etc.,  are  liable  to  the  damages 
incident  to  bombardment.  The  action  is,  however,  carefully 
regulated  by  convention : 

"Article  V.  In  bombardments  by  naval  forces  all  the  nec- 
essary measures  must  be  taken  by  the  commander  to  spare 

12  Hague  Convention,  Laws  and  Customs  of  War  on  Land,  article 
XXV,  Appendix,  p.  541. 

13  See  Hague  Conventions,  1907,  Bombardment  by  Naval  Forces  in 
Time  of  War,  Scott,  Peace  Conferences,  p.  2G1. 


324  RULES  OP   WAR.  (Cll.  17 

as  far  as  possible  sacred  edifices,  buildings  used  for  artistic, 
scientific,  or  charitable  purposes,  historic  monuments,  hospitals, 
and  places  where  the  sick  or  wounded  are  collected,  on  the 
understanding  that  they  are  not  used  at  the  same  time  for 
military  purposes. 

"It  is  the  duty  of  the  inhabitants  to  indicate  such  monuments, 
edifices,  or  places  by  visible  signs,  which  shall  consist  of  large 
fixed  rectangular  panels  divided  diagonally  into  two  colored 
triangular  portions,  the  upper  portion  black,  the  lower  portion 
white." 

"Article  VI.  If  the  military  situation  permits,  the  com- 
mander of  the  attacking  naval  force,  b'^fore  commencing  the 
bombardment,  must  do  his  utmost  to  warn  the  authorities."  ^* 

SAMB— SUBMARINE    MINES   AND    TORPEDOES. 

139.    By  the  Hague  Convention  of  1907,  it  is  forbidden: 
"(a)    To    lay    unandiored    automatic    contact    mines,    except 

'wlien  they   are   so   constructed  as  to    become   harmless 

one  hour  at  most  after  the  person  ^vho  laid  them  ceases 

to  control  them. 
"(b)    To  lay  anchored  automatic  contact  mines  ivhich  do  not 

become    harmless   as   soon   as   they  have   broken   loose 

from  their  moorings. 
"(c)    To  use   torpedoes  Tcrhich  do  not  become  harmless  xrhen 

they  have  missed  their  mark." 

There  was  much  discussion  as  to  the  propriety  of  the  use  of 
torpedoes  when  that  method  of  warfare  was  first  introduced. 
As  soon,  however,  as  it  was  assured  that  the  belligerent  could 
control  the  action  of  the  torpedo  to  a  reasonable  degree,  the 
opposition  disappeared. 

There  has  been  a  like  opposition  to  the  use  of  submarine 
mines.  The  subject  of  the  use  of  submarine  mines  was  con- 
sidered at  the  Hague  Conference  in  1899,  and  again  in  1907. 
The  Second  Conference  reached  the  conclusion  embodied  in 
the  Convention  Relative  to  the  Laying  of  Automatic  Contact 
Submarine  Mines,  prohibiting  the  laying  of  such  mines  except 
under  condition  that  by  construction  they  would,  if  unan- 
chored,  become  harmless  one  hour  after  they  ceased  to  be  un- 

14  Id.  p.  2G3, 


§  139)  SPECIAL    REGULATIONS.  ^5 

cler  control,  or  would,  if  anchored,  become  harmless  on  break- 
ing- adrift.  The  laying  of  such  mines  was  also  prohibited 
when  the  sole  purpose  was  to  intercept  commercial  shipping. 
The  convention  also  prohibited  the  use  of  torpedoes  "which  do 
not  become  harmless  when  they  have  missed  the  mark." 

The  aim  of  this  convention  is  to  remove  the  dangers  from 
peaceful  navigation  without  unduly  limiting  belligerent  opera- 
tions. Neutral  powers  are  also  permitted  to  lay  mines  during 
war  under  restrictions.  Provision  is  made  for  the  removal  of 
mines  at  the  close  of  war.  A  large  degree  of  freedom  in  mat- 
ter of  construction  is  allowed  for  a  time,  because  states  not 
having  mines  of  the  pattern  contemplated  in  the  convention 
are  merely  "to  convert  the  material  of  their  mines  as  soon  as 
possible,  so  as  to  bring  it  into  conformity  with  the  foregoing 
requirements."  ^^ 

This  convention  has  been  widely  criticised  and  was  not 
wholly  satisfactory  to  those  who  signed.  Westlake  says  of 
the  use  of  floating  mines :  "There  is  no  certainty  that  floating 
mines,  even  if  anchored  at  first,  will  not  get  loose,  nor  even 
much  probability  that  a  large  percentage  will  not  get  loose. 
Thus  the  employment  by  a  belligerent,  even  in  his  own  ter- 
ritorial waters,  or  in  those  of  his  enemy,  which  merchantmen 
may  be  expected  to  avoid  during  war,  of  contact  mines  which 
do  not  become  innocuous  as  soon  as  they  get  loose,  is  a  cause, 
lying  well  within  the  limits  of  human  foresight,  of  slaughter 
and  damage  to  peaceable  neutrals  engaged  in  their  lawful  oc- 
cupations in  waters  where  they  have  a  perfect  right  to  be. 
During  all  the  two  years  which  have  elapsed  since  the  close 
of  the  Russo-Japanese  War,  the  seas  of  the  Far  East  have 
continued  to  be  the  scene  of  disasters  which  the  employment 
of  such  mines  in  that  contest  has  caused  to  peaceful  shipping 
and  fishermen.  Now  the  right  of  a  state  in  the  waters  subject 
to  its  sovereignty  can  certainly  not  rank  higher  than  that  of  a 
private  owner  in  the  land  or  water  which  is  his  property.  Still 
less,  if  possible,  can  the  right  of  a  state  in  the  open  sea, 
which  is  free  to  the  use  of  all,  rank  higher  than  that  of  prop- 
erty. But  no  principle  is  more  firmly  established  in  the  science 
of  law  than  that  which  says  to  an  owner,  'sic  utere  tuo  ut 

15  Id.  p.  255,  Hague  Convention,  1907,   Submarine  Contact  Mines. 


326  RULES  OP  WAR.  (Cb.  17 

alienum  non  laedas.'  The  right  of  sovereignty,  therefore,  does 
not  extend  to  employing  anywhere  what  may  be  foreseen  to 
be  engines  of  slaughter  and  damage  to  unoffending  foreigners. 
The  foreign  government  whose  subjects  suffer  from  such  en- 
gines does  not  need  to  inquire  whether  their  use  is  prohibited 
by  any  positive  rule  of  international  law,  whether  resting  on 
recognized  custom  or  an  agreement.  They  are  indefensible  in 
themselves,  and  the  foreign  government  concerned  will  be 
justified,  not  only  in  taking  up  the  cause  of  its  injured  sub- 
jects, but  it  will  not  have  exceeded  its  rights  if  it  interferes 
in  order  to  stop  the  offending  methods  of  war."  ^" 

The  belligerent  action  during  the  Russo-Japanese  War  em- 
phasized the  need  of  control  of  the  use  of  submarine  mines. 
.  The  Chinese  delegate  at  the  Second  Hague  Convention  re- 
ported that  it  was  estimated  that  five  hundred  or  six  hundred 
Chinese  had  lost  their  lives  by  the  sinking  of  many  small 
Chinese  vessels  which  had,  in  spite  of  all  precautions  and 
while  innocently  employed,  run  upon  mines  that  were  adrift.^'' 

The  Hague  Convention  Relative  to  the  Laying  of  Auto- 
matic Contact  Submarine  INIines,  of  1907,  provides  only  in 
part  for  the  regulation  of  this  means  of  warfare.  Many  states 
are  in  favor  of  additional  restrictions,  particularly  in  order 
that  neutral  interests  may  be  more  effectively  protected. 


SAME— DISCHARGE  OF  PROJECTILES   AND   EXPLOSIVES 
FROM    BALLOONS. 

140.  The  Second  Hague  Peace  Conference  prohibited  "for  a 
period  extending  to  the  close  of  the  Third  Conference, 
the  discharge  of  projectiles  and  explosives  from  bal- 
loons or  by  other  ne^ir  methods  of  a  similar  nature." 

This  declaration  in  regard  to  the  use  of  balloons  and  other 
new  methods  of  warfare  of  similar  nature  is  a  renewal  of 
the  declaration  to  the  same  effect  adopted  by  the  First  Peace 
Conference  in  1899,  to  continue  for  a  period  of  five  years 
from  July  29,  1899.     The  term,  therefore,  expired  during  the 

ic  Westlake,  Int.  Law.  pt.  II,  War.  p.  322. 
i"  3  La  Dcnixieme  Conference,  p.  663. 


§  141)  sriES.  327 

Russo-Japanese  War  on  July  29,  1904;  but  neither  party  to 
that  war  used  balloons  for  such  purposes.  The  present  decla- 
ration is  to  continue  effective  to  the  close  of  the  Third  Peace 
Conference,^®  which  the  Second  Peace  Conference  recom- 
mended should  be  assembled  after  a  period  corresponding  to 
that  between  the  First  and  Second  Conferences. 

The  declaration  in  regard  to  the  use  of  balloons  is,  of 
course,  binding  only  upon  the  signatory  powers,  and  several 
of  the  more  important  states  of  the  world  do  not  seem  inclined 
to  bind  themselves,  even  till  the  close  of  the  Third  Peace  Con- 
ference, and  have  refrained  from  signing. 


SPIES. 

141.  A  spy  is  a  person  'who,  acting  clandestinely  or  under 
false  pretenses,  obtains  or  endeavors  to  obtain  informa- 
tion in  tbe  zone  of  operations  of  a  belligerent,  ^^tb  tbe 
intention  of  communicating  it  to  the  enemy.is 

The  aim  of  this  regulation  is  to  define  the  class  who,  be- 
cause acting  in  a  manner  especially  dangerous  to  a  belligerent, 
are  liable  to  special  treatment.  This  may  be  death  by  hanging. 
No  penalty  shall  be  inflicted  without  previous  trial,  nor  if  the 
spy  is  captured  after  rejoining  his  army.  To  act  as  a  spy  is 
not  necessarily  regarded  as  dishonorable,  but  is  to  act  at  risk 
of  extreme  penalty.  Those  who  obtain  information  openly  in 
their  proper  persons  as  soldiers  in  proper  uniform,  persons  in 
balloons,  or  a  bearer  of  a  flag  of  truce,  who  reports  what  he 
observes  without  effort  to  spy,  are  not  liable  to  treatment  as 
spies. 

Treatment  as  spies  was  threatened  by  Prussian  officers  to 
those  obtaining  information  by  means  of  balloons  in  the 
Franco-Prussian  War  in  1870,  and  by  the  Russian  Admiral 
Alexeiff  in  the  Russo-Japanese  War  in  1904  to  those  "com- 
municating war  news  to  the  enemy  by  means  of  improved  ap- 
paratus for  which  provision  has  not  yet  been  made  in  existing 

18  Hague  Declaration,  1907,  Discharging  Projectiles  from  Balloons. 

19  Hague  Convention,  1907,  Laws  and  Customs  of  War  on  Land, 
articles  XXIX-XXXI,  Appendix,  p.  542. 


328  RULES  OF  WAR.  (Ch.  17 

conventions."  While  certain  balloonists  captured  in  1870  were 
severely  treated,  they  were  not  condemned  as  spies.  The  posi- 
tion assumed  in  the  Russian  declaration  of  1904  was  generally 
opposed,  and  no  one  was  treated  as  a  spy  under  its  provisions. 
It  may  be  said  that  there  is  lacking  in  such  cases  the  essential 
element  of  clandestine  conduct. 


§  142)  MILITARY   OCCUPATION    AND   GOVERNMENT.  320 

CHAPTER  XVIII. 

MILITARY   OCCUPATION  AND  GOVERNMENT. 

142.  Military  Occupation. 

143.  Military  Government. 

144.  Exercise  of  Military  Authority  in  Occupied  Territory. 

145.  Martial  Law. 

146.  Military  Law,    Courts-Martial,   etc. 

147.  Cessation  of  Military  Control. 

HOSTILE   MILITARY   OCCUPATION. 

142.  Tlie  effective  holding  by  a  hostile  military  force  of  & 
territory  of  the  enemy  constitutes  hostile  military  oc- 
cupation. 

Military  occupation  should  be  distinguished  from  conquest 
and  from  military  control. 

"The  term  'conquest,'  as  it  is  ordinarily  used,  is  applicable 
to  conquered  territory  the  moment  it  is  taken  from  the  enemy ;. 
but,  in  its  more  limited  and  technical  meaning,  it  includes  only 
the  real  property  to  which  the  conqueror  has  acquired  a  com- 
plete title.  Until  the  ownership  of  such  property  so  taken 
is  confirmed  or  made  complete,  it  is  held  by  the  right  of  mili- 
tary occupation  (occupatio  bellica),  which,  by  the  usage  of 
nations  and  the  laws  of  war,  differs  from,  and  falls  short  of,, 
the  right  of  complete  conquest  (debellatio,  ultima  victoria)."  ^ 

Military  control  implies  simply  the  exercise  of  authority  by 
the  military  force  rather  than  by  civil  officials.  Military  control 
may,  and  often  does,  continue  after  an  occupied  territory  has 
been  ceded  to  the  enemy  which  occupied  it,  as  in  the  case  of 
Porto  Rico  after  the  treaty  of  peace  between  Spain  and  the 
United  States  in  1898.^ 

Military  occupation  is  an  incident  of  war,  and  as  such  is  not 
political  in  its  effects. •''     It  does  not  transfer  sovereignty,  but 

1  2  Halleck,  Int.  Law  (4th  Ed.)  p.  465. 

2  Dooley  v.  United  States,  182  U.  S.  222,  21  Sup.  Ct.  762,  45  L.  Ed. 
1074. 

3  See  Magoon,  The  Law  of  Civil  Government  under  Military  Oc- 
cupation; 1  Moore.  Int.  Law  Digest,  §  21 ;  7  Id.,  §§  1143-1155;  2  Hal- 
leck, Int.  Law,  c.  XXXIII. 


t^30  MILITARY   OCCUPATION   AND    GOVERNMENT.         (Cll.  18 

gives  to  the  invading  force  the  right  to  exercise  control  for 
the  period  of  occupation.*  The  nature  and  extent  of  this  con- 
trol will  be  determined  by  circumstances,  as  by  the  proximity 
of  the  occupied  territory  to  the  seat  of  hostilities.  Formerly 
no  distinction  was  made  between  occupation  and  conquest. 
Karly  writers  regarded  effective  occupation  as  equivalent  to 
the  acquisition  of  title  to  a  region,  and  did  not  consider  a 
treaty  or  other  sanction  as  essential.  Pufendorf  discusses  this 
matter  fully,  and  argues  that  the  sovereignty  must  be  estab- 
lished by  other  means  than  simple  exercise  of  force,  which  is 
simply  a  physical  fact,  which  may  or  may  not  have  a  political 
significance.-'^  Writers  of  the  eighteenth  century  began  to  dif- 
ferentiate conquest  and  occupation.  They  maintained  that  the 
inhabitants  of  the  occupied  territory  should  not  be  treated  as 
enemies,  but  as  subjects  for  the  time  being."  In  1815  a  judg- 
ment of  the  Supreme  Court  of  the  United  States  affirmed 
that,  "although  acquisitions  made  during  war  are  not  consid- 
ered as  permanent  until  confirmed  by  treaty,  yet  to  every  com- 
mercial and  belligerent  purpose  they  are  considered  as  a  part 
of  the  domain  of  the  conqueror,  so  long  as  he  retains  the  pos- 
session and  government  of  them."  '  According  to  a  decision 
of  the  same  court  in  1901,  during  military  occupation  military 
authority  supersedes  civil  authority  to  the  extent  deemed  nec- 
ecessary  and  in  accord  with  the  laws  of  war.^ 

According  to  the  Hague  Convention  of  1907 :  "Territory 
is  considered  occupied  when  it  is  actually  placed  under  the  au- 
thority of  the  hostile  army.  The  occupation  extends  only  to 
the  territory  where  such  authority  has  been  established  and 
can  be  exercised."  ^ 

Military  occupation  is  therefore  a  question  of  fact,  because 
one  or  the  other  state  must  be  competent  to  exercise  authority. 

4  Downes  v.  Bidwell,  182  U.  S.  345,  21  Sup.  Ct.  770,  45  L.  Ed.  1088. 

5  Pufendorf,  De  Jure  Natural,  bk.  VII,  c.  VII,  3fE. 

6  Wolf,  Institutiones  Juris  Natural  et  Gentium,  MCCIV;  Vattel,  Le 
Droit  de  Gens,  §  197ff. 

7  Thirty  Hogsheads  of  Sugar  v.  Boyle,  9  Cranch,  191,  3  L.  Ed.  701. 

8  Dooley  v.  United  States,  182  U.  S.  222,  21  Sup.  Ct.  762,  45  L.  Ed. 
1074. 

9  Hague  Convention,  1907,  Laws  and  Customs  of  War  on  Laud,  art. 
XLII,  Appendix,  p.  543. 


§  143)  MILITARY   GOVERNMENT.  331 

If  the  hostile  army  is  in  control,  it  is  within  the  authority  of 
that  belHgerent  to  govern  the  region  over  v^hich  it  has  in  fact 
the  power.^" 

As  the  military  occupation  is  a  fact,  the  beginning  and  end- 
ing of  military  occupation  is  determined  by  the  presence  or 
absence  of  an  effective  military  force  in  a  hostile  territory,  or 
by  a  treaty  which  fixes  the  status  of  the  occupied  territory. 
When  military  force  is  withdrawn,  the  occupation  ceases,  and 
the  national  government  assumes  sway.  When  a  treaty  trans- 
fers an  occupied  territory  to  the  sovereign  of  the  occupying 
forces,  military  occupation  ceases,  though  the  military  forces 
may  remain,  and  military  control  may  continue. 


MILITARY    GOVERNMENT. 

143.  Tlie  organization  througli  ivhicli  the  authority  is  exer- 
cised in  a  region  under  military  occupation  constitutes 
the  military  government. 

"Military  government — that  is,  the  administration  of  the 
affairs  of  civil  government  exercised  by  a  belligerent  in  terri- 
tory of  an  enemy  occupied  by  him — is  not  considered  in  mod- 
ern times  as  doing  away  with  all  laws  and  substituting  therefor 
the  will  of  a  military  commander.  Such  government  is  con- 
sidered as  a  new  means  or  instrument  for  the  execution  of 
such  laws,  natural  and  enacted,  international  and  domestic, 
as  are  necessary  to  preserve  the  peace  and  order  of  the  com- 
munity, protect  rights,  and  promote  the  war  to  which  it  is  an 
incident. 

"Under  any  government,  if  for  any  reason  the  usual  and 
ordinary  means  of  enforcing  the  laws  and  accomplishing  the 
purposes  of  government  are  found  inadequate  to  meet  an 
existing  emergency,  resort  may  be  had  to  martial  rule,  in  order 
to  enforce  the  law  and  accomplish  the  purposes  of  govern- 
ment. Martial  rule  is  intended  to  effectuate  some  law,  not  to 
abrogate  all  law.  To  illustrate :  Private  property  may  be 
taken  or  injured  for  public  purposes.  Ordinarily  this  is  ac- 
complished  by    the   slow   process   of   condemnation.     Under 

10  United  States  v.  Rice,  4  Wheat.  246,  4  L.  Ed.  562. 


332  MILITARY  OCCUPATION   AND   GOVERNMENT.         (Cb.  18 

martial  rule  the  process  is  accelerated.  If  the  necessity  ap- 
parently exists,  as  in  the  presence  of  a  conflagration,  a  build- 
ing may  be  summarily  destroyed,  or  trespass  committed  with- 
out liability.  Again,  a  man's  life  may  be  taken  if  he  is  guilty 
of  treason.  Under  the  ordinary  administration  of  the  law  the 
most  notoriously  guilty  Individual,  captured  red-handed,  must 
be  proceeded  against  by  the  slow  process  of  the  court.  Under 
martial  rule  he  is  incontinently  executed.  It  is  the  procedure 
which  is  dispensed  with,  not  the  law. 

"\\'hile  a  military  government  continues  as  an  instrument 
of  warfare,  used  to  promote  the  objects  of  the  invasion  by 
weakening  the  enemy  or  strengthening  the  invader,  its  pow- 
ers are  practically  boundless."  ^^ 

The  military  authorities,  in  the  exercise  of  their  govern- 
mental functions,  may  in  general  perform  such  administra- 
tive functions  under  the  laws  of  war  as  are  by  them  deemed 
expedient.  Legislative  and  other  powers  are,  however,  limited 
to  strict  necessity.^^ 

Halleck  says :  "The  government  established  over  an  ene- 
my's territory  during  its  military  occupation  may  exercise  all 
the  powers  given  by  the  laws  of  war  to  the  conqueror  over 
the  conquered,  and  is  subject  to  all  the  restrictions  which  that 
code  imposes.  It  is  of  little  consequence  whether  such  gov- 
ernment be  called  a  military  or  a  civil  government.  Its  char- 
acter is  the  same,  and  the  source  of  its  authority  the  same. 
In  either  case  it  is  a  government  imposed  by  the  laws  of  war, 
and  so  far  as  it  concerns  the  inhabitants  of  such  territory,  or 
the  rest  of  the  world,  those  laws  alone  determine  the  legality 
or  illegality  of  its  acts.  But  the  conquering  state  may,  of  its 
own  will,  whether  expressed  in  its  constitution,  or  in  its  laws, 
impose  restrictions  additional  to  those  established  by  the  usage 
of  nations,  conferring  upon  the  inhabitants  of  the  territory  so 
occupied  privileges  and  rights  to  which  they  are  not  strictly  en- 
titled by  the  laws  of  war;  and,  if  such  government  of  military 
occupation  violate  these  additional  restrictions  so  imposed,  it  is 

11  Magoou,  The  Law  of  Civil  Governmeut  under  Military  Occupa- 
tion, p.  14 ;   United  States  v.  Diekelnian.  92  U.  S.  520,  23  L.  Ed.  742. 

12  Dooley  v.  United  States,  182  U.  S.  234,  21  Sup.  Ct.  7G2,  45  L. 
Ed.  1074. 


§  143)  MILITARY   GOVERNMENT.  333 

accountable  to  the  power  which  established  it,  but  not  to  the 
rest  of  the  world."  ^' 

The  Hague  Convention  of  1907  provides  that: 

"The  authority  of  the  legitimate  power  having  in  fact 
passed  into  the  hands  of  the  occupant,  the  latter  shall  take  all 
the  measures  in  his  power  to  restore,  and  insure,  as  far  as 
possible,  public  order  and  safety,  while  respecting,  unless  ab- 
solutely prevented,  the  laws  in  force  in  the  country."  ^* 

Professor  Westlake  says  that  the  above  provision  of  the 
Hague  Convention  "indicates  that  the  law  to  be  enforced  by 
the  occupant  consists,  first,  of  the  territorial  law  in  general,  as 
that  which  stands  to  the  public  order  and  social  and  commer- 
cial hfe  of  the  district  in  a  relation  of  mutual  adaptation,  so 
that  any  needless  displacement  of  it  would  defeat  the  object 
which  the  invader  is  enjoined  to  have  in  view,  and,  secondly, 
of  such  variations  of  the  territorial  law  as  may  be  required  by 
real  necessity  and  are  not  expressly  prohibited  by  any  of  the 
further  rules  which  will  come  before  us.  Such  variations  will 
naturally  be  greatest  in  what  concerns  the  relation  of  the  com- 
munities and  individuals  within  the  district  to  the  invading 
army  and  its  followers;  it  being  necessary  for  the  protection 
of  the  latter,  and  for  the  unhindered  prosecution  of  the  war 
by  them,  that  acts  committed  to  their  detriment  shall  not  only 
lose  what  justification  the  territorial  law  might  give  them  as 
committed  against  enemies,  but  shall  be  repressed  more  se- 
verely than  the  territorial  law  would  repress  acts  committed 
against  fellow  subjects.  Indeed,  the  entire  relation  between 
the  invaders  and  the  invaded,  so  far  as  it  may  fall  within  the 
criminal  department,  whether  by  the  intrinsic  nature  of  the 
acts  done  or  in  consequence  of  the  regulations  made  by  the 
invaders,  may  be  considered  as  taken  out  of  the  territorial  law 
and  referred  to  what  is  called  martial  law."  ^^ 

An  executive  order  of  the  President  of  the  United  States 
to  the  Secretary  of  War,  May  19,  1898,  during  the  Spanish- 
American  War  gives  a  statement  of  the  point  of  view  of  the 

13  2  Halleck,  Int.  Law  (4th  Ed.)  p.  466. 

1*  Hague  Convention,  1907,  Laws  and  Customs  of  War  on  Land, 
art.  XLIII,  Appendix,  p.  543. 

15  Westlake,  Int.  Law,  p.  42;   War,  p.  86. 


834  MILITARY   OCCUPATION   AND   GOVERNMENT.         (CL.  IS 

United  States.  "The  first  effect  of  the  mihtary  occupation  of 
the  enemy's  territory  is  the  severance  of  the  former  poHtical 
relations  of  the  inhabitants  and  the  estabHshment  of  a  new 
political  power.  Under  this  changed  condition  of  thing's  the 
inhabitants,  so  long  as  they  perform  their  duties,  are  entitled 
to  security  in  their  persons  and  property  and  in  all  their  pri- 
vate rights  and  relations.  It  is  my  desire  that  the  people  of 
the  Philippines  should  be  acquainted  with  the  purpose  of  the 
United  States  to  discharge  to  the  fullest  extent  its  obligations 
in  this  regard.  It  will  therefore  be  the  duty  of  the  commander 
of  the  expedition,  immediately  upon  his  arrival  in  the  islands, 
to  publish  a  proclamation  declaring  that  we  come,  not  to  make 
war  upon  the  people  of  the  Philippines,  nor  upon  any  party  or 
faction  among  them,  but  to  protect  them  in  their  homes,  in 
their  employments,  and  in  their  personal  and  religious  rights. 
All  persons  who,  either  by  active  aid  or  by  honest  submission, 
co-operate  with  the  United  States  m  its  efforts  to  give  effect  to 
this  beneficent  purpose,  will  receive  the  reward  of  its  support 
and  protection.  Our  occupation  should  be  as  free  from  se- 
verity as  possible."  ^* 

EXERCISE     OF     MILITARY     AUTHORITY     IN     OCCUPIED 
TERRITORY. 

144.    In  th.e  exercise  of  military  authority  in  an  occupied  ter- 
ritory the  occupant  in  general — 

(a)  Is  under  obligation  to  insure  so  far  as   possible  the  se- 

curity of  the  occupied  territory. 

(b)  Is  forbidden  to  violate  the  personal  rights  of  the  inhab- 

itants. 

(c)  Is  permitted  to  exercise  restraint  over  persons  and  to  use 

property   to   the    extent   necessary   and   alloxtred  by   the 
lavirs  of  war. 

The  Hague  Convention,  1907,  Respecting  the  Laws  and 
Customs  of  War  on  Land,  which  is  a  revision  of  the  conven- 
tion of  1899  upon  the  same  subject,  contains  specific  regula- 
tions in  section  III  in  regard  to  exercise  of  military  authority. 

(a)  This  convention  provides  that  the  occupant  shall  so  far 
as  possible  secure  public  order,  respect  the  laws,  and  carry  on 

16  10  Messages  and  Papers  of  Presidents,  p.  209. 


§  144)  EXERCISE    OF    MILITARY    AUTHORITY.  335 

the  administration  of  the  occupied  territory. ^^  Being  in  con- 
trol, the  occupant  would  for  his  own  sake  maintain  public 
order.  Not  all  laws  would  flourish  during  a  period  of  mili- 
tary occupancy.  Laws  relating  to  political  relations  would  in 
general  be  suspended  during  occupancy,  because  the  political 
power  which  would  enforce  these  laws  is  for  the  time  in  abey- 
ance. Local  laws  regulating  private  relations  are  continued, 
unless  regarded  as  detrimental  to  the  occupant.  Ordinary 
laws  of  trade,  local  taxes,  registration  of  marriages,  births, 
and  deaths,  and  other  laws  not  affecting  the  military  occupant, 
are  usually  operative. 

(b)  By  this  convention  the  occupant  is  forbidden  to  compel 
the  inhabitants  of  the  territory  to  swear  allegiance  to  the  hos- 
tile power  or  to  furnish  military  information.  He  is  forbidden 
to  violate  personal  or  property  rights  of  individuals.  This 
prohibition  extends  to  religious  convictions  and  to  the  con- 
fiscation or  pillage  of  private  property.  He  is  also  under  ob- 
ligations to  treat  the  property  of  municipalities  and  of  insti- 
tutions devoted  to  the  welfare  of  humanity  as  private  prop- 
erty.^^  Article  44  of  the  convention,  providing  that  "any 
compulsion  on  the  population  of  occupied  territory  to  furnish 
information  about  the  army  of  the  other  belligerent  or  about 
his  means  of  defense  is  forbidden,"  has  been  a  subject  of  dis- 
cussion, owing  to  the  difference  of  interpretation.  Some 
maintained  that  under  this  article  inhabitants  of  an  occupied 
country  might  be  forced  to  act  as  guides  for  the  enemy.  Ar- 
ticle 23  forbids,  however,  a  belligerent  "to  compel  the  nationals 
of  the  adverse  party  to  take  part  in  the  operations  of  war 
directed  against  their  country."  ^^ 

(c)  The  occupant  is  permitted  to  levy  contributions  or  make 
requisitions  upon  the  inhabitants  in  case  of  need.  In  such 
cases  receipts  must  be  given.  He  may  take  possession  of  pub- 
lic property,  which  may  be  used  for  military  operations,  and 
as  administrator  enjoy  the  use  of  other  public  property,  but 
must  preserve  the  capital.^"     In  article  53  the  army  of  occu- 

17  Articles  XLIII,  XLVIII,  Appendix,  p.  .54.3. 

18  Articles  XLIV-XLVI,  L,  LVI,  Appendix,  pp.  543,  544. 

18  See  Lemonon,  La  Second  Conference  de  la  Paix,  p.  35Sff ;  Ger- 
man Weissbuch,  No.  527  (1907)  p.  7. 

20  Id.  arts.  XLIX,  LI-LV,  Appendix,  p.  544, 


336  MILITARY  OCCUPATION   AND   GOVERNMENT.         (Cll.  18 

pation  is  permitted  to  take  possession  of  valeurs  exigibles, 
"realizable  securities,"  belonging  to  the  state,  which  is  re- 
garded as  including  obligations  already  payable  or  such  as 
may  become  payable  during  the  period  of  occupation.  This 
expression  has  been  differently  translated,  and  Professor  Hol- 
land regards  it  as  intentionally  ambiguous.^  ^  Hall,  quoting 
with  approval  Heffter  and  Phillimore,  says:  "According  to 
them,  incorporeal  things  can  only  be  occupied  by  actual  pos- 
session of  the  subject  to  which  they  adhere.  When  territory 
is  occupied,  there  are  incorporeal  rights,  such  as  servitudes, 
which  go  with  it,  because  they  are  inherent  in  the  land.  But 
the  seizure  of  instruments  or  documents  representing  debts 
has  not  an  analogous  effect.  They  are  not  the  subject  to 
which  the  incorporeal  right  adheres.  They  are  merely  the 
evidence  that  the  right  exists,  'or,  so  to  speak,  the  title  deeds 
of  the  obligee.'  The  right  itself  arises  out  of  the  purely  per- 
sonal relations  between  the  creditor  and  the  debtor;  it  inheres 
in  the  creditor.  It  is  only,  consequently,  when  a  belligerent  is 
entitled  to  stand  in  the  place  of  his  enemy  for  all  purposes — 
that  is  to  say,  it  is  only  when  complete  conquest  has  been  made, 
and  the  identity  of  the  conquered  state  has  been  lost  in  that  of 
the  victor — that  the  latter  can  stand  in  its  place  as  a  creditor, 
and  gather  in  the  debts  which  are  owing  to  it."  ^^ 

"Submarine  cables,  connecting  an  occupied  territory  with 
a  neutral  territory,  shall  not  be  seized  or  destroyed,  except  in 
the  case  of  absolute  necessity.  They  must  likewise  be  re- 
stored, and  compensation  fixed,  when  peace  is  made."  *' 

An  illustration  of  the  application  of  the  principles  for  the 
exercise  of  military  authority  in  an  occupied  territory  is  shown 
in  the  executive  order  of  President  McKinley  to  the  Secre- 
tary of  War  on  May  19,  1898,  relating  to  the  occupation  of 
the  Philippines  by  United  States  forces.  A  portion  of  the  or- 
der particularly  applicable  is  as  follows : 

"Though  the  powers'  of  the  military  occupant  are  absolute 
and  supreme,  and  immediately  operate  upon  the  political  con- 

21  Holland,  Laws  and  Customs  of  War  on  Land,  p.  78. 

22  Hall,  Int.  Law  (5th  Ed.)  p.  42L  See,  also,  Heffter,  §  134;  Calvo, 
%  1977;   2  Rivier,  Principes,  307. 

2  3  Article  LIV,  Appendix,  p.  544. 


§  144)  EXERCISE    OP    MILITARY   AUTHORITY.  337 

dition  of  the  inhabitants,  the  municipal  laws  of  the  conquered 
territory,  such  as  affect  private  rights  of  person  and  property 
and  provide  for  the  punishment  of  crime,  are  considered  as 
continuing  in  force,  so  far  as  they  are  compatible  with  the 
new  order  of  things,  until  they  are  suspended  or  superseded 
by  the  occupying  belligerent;  and  in  practice  they  are  not 
usually  abrogated,  but  are  allowed  to  remain  in  force  and  to 
be  administered  by  the  ordinary  tribunals,  substantially  as 
they  were  before  the  occupation.  This  enlightened  practice 
is,  so  far  as  possible,  to  be  adhered  to  on  the  present  occasion. 
The  judges  and  the  other  officials  connected  with  the  admin- 
istration of  justice  may,  if  they  accept  the  authority  of  the 
United  States,  continue  to  administer  the  ordinary  law  of  the 
land  as  between  man  and  man  under  the  supervision  of  the 
American  commander  in  chief.  The  native  constabulary  will, 
so  far  as  may  be  practicable,  be  preserved.  The  freedom  of 
the  people  to  pursue  their  accustomed  occupations  will  be 
abridged  only  wdien  it  may  be  necessary  to  do  so. 

"While  the  rule  of  conduct  of  the  American  commander  in 
chief  will  be  such  as  has  just  been  defined,  it  will  be  his  duty 
to  adopt  measures  of  a  different  kind  if,  unfortunately,  the 
course  of  the  people  should  render  such  measures  indispen- 
sable to  the  maintenance  of  law  and  order.  He  will  then 
possess  the  power  to  replace  or  expel  the  native  officials  in 
part  or  altogether,  to  substitute  new  courts  of  his  own  consti- 
tution for  those  that  now  exist,  or  to  create  such  new  or  sup- 
plementary tribunals  as  may  be  necessary.  In  the  exercise  of 
these  high  powers  the  commander  must  be  guided  by  his  judg- 
ment and  his  experience  and  a  high  sense  of  justice. 

"One  of  the  most  important  and  most  practical  problems 
with  which  the  commander  of  the  expedition  will  have  to  deal 
is  that  of  the  treatment  of  property  and  the  collection  and  ad- 
ministration of  the  revenues.  It  is  conceded  that  all  public 
funds  and  securities  belonging  to  the  government  of  the 
country  in  its  own  right  and  all  arms  and  supplies  and  other 
'movable  property  of  such  government  may  be  seized  by  the 
military  occupant  and  converted  to  the  use  of  this  government. 
The  real  property  of  the  state  he  may  hold  and  administer,  at 
the  same  time  enjoying  the  revenues  thereof;  but  he  is  not  to 

WiLS.lNT.L.— 22 


338  MILITARY   OCCUPATION   AND   GOVERNMENT.         (Ch.  18 

destroy  it,  save  in  the  case  of  military  necessity.  All  public 
means  of  transportation,  such  as  telegraph  lines,  cables,  rail- 
ways, and  boats  belonging  to  the  state  may  be  appropriated  to 
his  use ;  but,  unless  in  case  of  military  necessity,  they  are  not 
to  be  destroyed.  All  churches  and  buildings  devoted  to  re- 
ligious worship  and  to  the  arts  and  sciences,  all  schoolhouses, 
are,  so  far  as  possible,  to  be  protected,  and  all  destruction  or 
intentional  defacement  of  such  places,  of  historical  monu- 
ments or  archives,  or  of  works  of  science  or  art,  is  prohibited, 
save  when  required  by  urgent  military  necessity. 

"Private  property,  whether  belonging  to  individuals  or  cor- 
porations, is  to  be  respected,  and  can  be  confiscated  only  as 
hereafter  indicated.  Means  of  transportation,  such  as  tele- 
graph lines  and  cables,  railways,  and  boats,  may,  although 
they  belong  to  private  individuals  or  corporations,  be  seized 
by  the  military  occupant ;  but,  unless  destroyed  under  military 
necessity,  are  not  to  be  retained. 

"While  it  is  held  to  be  the  right  of  a  conqueror  to  levy  con- 
tributions upon  the  enemy  in  their  seaports,  towns,  or  prov- 
inces which  may  be  in  his  military  possession  by  conquest,  and 
to  apply  the  proceeds  to  defray  the  expenses  of  the  war,  this 
right  is  to  be  exercised  within  such  limitations  that  it  may  not 
savor  of  confiscation.  As  the  result  of  military  occupation  the 
taxes  and  duties  payable  by  the  inhabitants  to  the  former 
government  become  payable  to  the  military  occupant,  unless 
he  sees  fit  to  substitute  for  them  other  rates  or  modes  of  con- 
tribution to  the  expenses  of  the  government.  The  moneys  so 
collected  are  to  be  used  for  the  purpose  of  paying  the  expenses 
of  government  under  the  military  occupation,  such  as  the  sal- 
aries of  the  judges  and  the  police,  and  for  the  payment  of  the 
expenses  of  the  army. 

"Private  property  taken  for  the  use  of  the  army  is  to  be 
paid  for  when  possible  in  cash  at  a  fair  valuation,  and  when 
payment  in  cash  is  not  possible  receipts  are  to  be  given."  ^* 

24  10  Messages  and  Papers  of  Presidents,  p,  209. 


§  145)  MARTIAL   LAW.  339 


MARTIAIi    LAW. 

145.    Martial  lax?  is  the  law  in  accordance  Tvitli  xcliicli  mili- 
tary authority  is  exercised. 

Martial  law  becomes  operative  when  a  hostile  territory  is 
occupied  by  the  enemy.  It  does  not  suspend  or  supersede  local 
laws,  except  so  far  as  necessary.^^  Martial  law  is  not  a  jus- 
tification for  oppression  or  other  arbitrary  action,  and  a  com- 
mander thus  exercising  his  authority  is  liable  to  penalty.-® 
"What  is  called  'declaration  of  martial  law'  is  the  mere 
announcement  of  a  fact;  it  does  not  and  cannot  create  that 
fact.  The  exigencies  which,  in  any  particular  place,  justify 
the  taking  of  human  life  without  the  interposition  of  the  civil 
tribunals,  and  without  the  authority  of  the  civil  law,  may  jus- 
tify the  suspension  of  the  power  of  such  tribunals  and  the  sub- 
stitution of  martial  law.  The  law  of  war,  or  at  least  many 
of  its  rules,  are  merely  the  results  of  a  paramount  necessi- 
ty." ^^  Martial  law  may  be  proclaimed  in  the  time  of  peace, 
when  for  any  reason  the  regular  course  of  administration  is 
so  disturbed  as  to  make  it  necessary,  as  in  time  of  great  dis- 
aster by  fire,  or  earthquake. 

General  Davis  says :  "Martial  law,  or,  to  speak  more  cor- 
rectly, military  rule,  or  the  law  of  hostile  occupation,  is  a  term 
applied  to  the  government  of  an  occupied  territory  by  the  com- 
manding general  of  the  invading  force.  INIartial  law  also 
prevails  in  the  immediate  theater  of  operations  of  an  army  in 
the  field.  The  reason  in  both  cases  is  the  same.  The  ordinary 
agencies  of  government,  including  the  machinery  provided  for 
the  prevention  and  punishment  of  crime,  are  suspended  by  the 
fact  of  war.  This  suspension  takes  place  at  a  time  when  so- 
ciety is  violently  disturbed,  when  the  usual  restraints  of  law 
are  at  a  minimum  of  efficiency,  and  when  the  need  of  such  re- 
straints is  the  greatest  possible.  This  state  of  affairs  is  the 
direct  result  of  the  invasion,  or  occupation,  of  the  disturbed 
territory  by  an  enemy.    The  only  organized  power  capable  of 

2  5  Dow  V.  Johnson,  100  U.  S.  158,  25  L.  Ed.  632. 
26  Luther  v.  Borden,  7  How.  1,  12  L.  Ed.  581. 
2T  1  Halleck,  Int.  Law  (4th  Ed.)  p.  599. 


340  MILITARY   OCCUPATION   AND   GOVERNMENT.         (Ch.  18 

restoring  and  maintaining  order  is  that  of  the  inva(Hng  force, 
which  is  vested  in  its  commanding  general.  Upon  him,  there- 
fore, international  law  places  the  responsibility  of  preserving 
order,  punishing  crime,  and  protecting  life  and  property  with- 
in the  limits  of  his  command.  His  power  in  the  premises  is 
equal  to  his  responsibility.  In  cases  of  extreme  urgency,  such 
as  arise  after  a  great  battle,  or  the  capture  of  a  besieged  place 
or  a  defended  town,  he  may  suspend  all  law,  and  may  punish 
crimes  summarily,  or  by  tribunals  of  his  own  constitution."  ^^ 

MILITARY     liAW^,     COURTS-MARTIAL,     AND     MILITARY 
COMMISSIONS. 

146.  Military  law,  courts-martial,  and  military  commissions 
are  particularly  concerned  'nritli  offenses  against  mili- 
tary discipline  or  good  order. 

Military  law  may  and  does  exist  in  time  of  peace  and  in 
time  of  war.  Military  law  is  the  law  for  the  government  of 
military  forces.  As  such  forces  are  called  upon  to  perform 
duties  in  behalf  of  the  state,  a  soldier  may  sometimes,  under 
orders,  act  in  a  manner  which  might  render  an  ordinary  civil- 
ian liable  before  a  civil  court,  but  which  would  be  the  proper 
action  under  military  law.  It  would  be  manifestly  inexpedient 
to  allow  local  authorities  to  assume  jurisdiction  over  offenses 
which  might  take  place  within  the  limits  of  a  military  post. 
Indeed,  for  offenses  against  certain  military  regulations  there 
might  be  no  provision  in  the  local  law. 

Offenses  against  military  law  are  tried  as  the  law  may  pre- 
scribe, but  usually  by  courts-martial  instituted  for  the  purpose. 
The  sentence  of  such  a  court  must  also  be  in  accord  with  law, 
and  when  proceedings  of  such  a  court  have  been  regular  and 
sentence  proper  the  civil  courts  decline  to  take  jurisdiction,'^ 
and  in  general  civil  courts  will  review  the  findings  of  a  court- 
martial  only  to  ascertain  whether  the  court  acted  within  its 
proper  competence.^'' 

2  8  Davis,  Elements  of  Int.  Law  (3d  Ed.)  p.  333. 

2  9  Dynes  v.  Hoover,  20  How.  65,  15  L.  Ed.  838. 

3  0  Carter  v.  McClaughry,  183  U.  S.  3G5,  22  Sup.  Ct.  ISl,  46  L.  Ed. 
236.     See  discussion  of  jurisdiction  of  court-martial  in  Case  of  Wal- 


§  147)  CESSATION    OF    OCCUPATION    AND    CONTROL.  341 

Offenses  not  provided  for  in  the  military  law  may  be 
brought  before  a  military  commission,  which  may  recommend 
to  the  commanding-  officer  a  suitable  punishment.  Such  com- 
missions are  usually  appointed  for  special  cases.  "In  the  war 
between  the  United  States  and  the  Republic  of  Mexico,  it  was 
found  that  no  provisions  had  been  made  in  the  United  States 
Rules  and  Articles  of  War  for  numerous  cases,  civil  and  crim- 
inal, between  the  citizens  of  the  United  States  and  between 
such  citizens  and  foreigners,  in  Mexican  territory  occupied  by 
the  troops  of,  but  without  the  jurisdiction  of  any  court  of,  the 
United  States.  All  such  cases,  of  a  criminal  character,  arising 
in  the  territory  of  Mexico  occupied  by  the  'main  army'  under 
General  Scott,  were  referred  by  him  to  'military  commissions,' 
which  were  special  tribunals  constituted  and  appointed  for  that 
purpose.  In  California  they  were  usually  left  to  be  decided  by 
the  ordinary  tribunals  of  the  country,  although  special  tribu- 
nals were  there  organized,  in  a  few  special  cases,  by  the  gov- 
ernment of  military  occupation."  ^^ 

CESSATION    OF    HOSTILE    MILITARY    OCCUPATION   AND 
OF    MILITARY    CONTROL. 

147.    Hostile  military  occupation  ceases  xrlien  tlie  effective  mil- 
itary force   is   ivitlidraivii  from   a   bostile  territory,   or 
on  tlie  conclusion  of  peace. 
Military  control  ceases  Ttrlien  and  to  the  extent  that  the 
regrular  civil  government  is  restored. 

Military  occupation  in  the  strict  sense  is  a  term  applicable 
only  in  time  of  war,  and  is  the  effective  holding  by  force  of 
an  enemy  territory.  This  would  cease  in  fact  when  the  force 
is  withdrawn,  and  would  cease  from  a  legal  point  of  view 
when  by  treaty  of  peace  the  war  is  at  an  end. 

The  term  "military  occupation"  is  also  used  in  a  loose  sense 
to  designate  exercise  of  authority  through  the  military  forces 
after  peace  is  restored  and  before  a  regular  government  is  es- 
tablished.   The  object  of  the  continued  maintenance  of  a  mili- 

ler,  Foreign  Relations  U.  S.  1895,  p.  304,  and  indez  "Arrest  of  J.  L. 
Waller." 

312  Halleck,  Int.  Law  (4tli  Ed.)  p.  474. 


342  MILITARY  OCCUPATION  AND   GOVERNMENT.         (Ch.  18 

tary  force  in  a  territory  after  the  close  of  war  is  in  general 
not  such  as  to  bring  it  within  the  scope  of  international  law 
of  war.  As  Magoon  says  of  Porto  Rico  and  of  Cuba  after 
the  Spanish-American  War : 

"Upon  the  ratifications  of  the  treaty  of  peace  being  ex- 
changed, the  sovereignty  and  jurisdiction  of  the  United  States 
permanently  attached  to  Porto  Rico,  and  the  island  became 
territory  appertaining  to  the  United  States.  The  United  States 
is  in  undisputed  possession  of  the  island,  and  therefore  the 
military  government  of  Porto  Rico  has  ceased  to  occupy  the 
place  of  the  suspended  or  expelled  sovereignty  of  Spain,  and 
has  become  an  instrument  of  the  new  sovereignty.  It 
has  become  the  representative  of  sovereignty,  instead  of  a 
substitute.  Since  hostilities  have  ceased  in  Porto  Rico,  it  fol- 
lows that  the  military  government  is  not  authorized  to  adopt 
measures  seeking  to  promote  the  success  of  military  opera- 
tions, nor  to  justify  its  action  on  that  ground. 

"As  to  Porto  Rico  the  war  has  ended,  and  the  purposes  of 
the  military  operations  therein  have  been  accomplished ;  that 
is  to  say,  a  complete  conquest  has  been  effected  and  a  peace 
secured.  Therefore  in  that  island  the  United  States  is  no 
longer  a  belligerent,  and  it  follows  that  the  existing  govern- 
ment therein  no  longer  exercises  its  powers  by  virtue  of  belr- 
ligerent  right."  ^- 

"The  conditions  existing  in  Cuba  differ  materially  from 
those  prevailing  in  Porto  Rico,  as  do  also  the  powers  of  the 
military  government. 

"The  sovereignty  of  Spain  has  been  withdrawn  from  Cuba, 
but  the  sovereignty  of  the  United  States  has  not  attached 
thereto,  and  the  sovereignty,  declared  by  Congress  to  be  pos- 
sessed by  the  people  of  the  island,  remains  dormant.  Under 
these  conditions  the  military  government  of  Cuba  continues 
to  be  a  substitute  for  sovereignty,  as  though  the  question  of 
sovereignty  were  still  pending  the  outcome  of  a  war.  It  ap- 
pears to  the  writer  that  under  this  condition  the  military  gov- 
ernment of  Cuba  may  exercise  such  powers  of  sovereignty  as 
are  necessary   for  the  successful  conduct  of  the  internal  af- 

»2  Magoou,  Law  of  Civil  Government  under  Military  Occupation, 
p.  19. 


§  14:7)         CESSATION    OF    OCCUPATION    AND   CONTROL.  343 

fairs  of  government,  subject  to  the  restraints  imposed  by  the 
ideas  and  theories  of  government  prevaiUng  under  the  sover- 
eignty by  which  it  was  created  and  the  orders  of  the  superior 
officials  and  authorities  of  the  sovereignty  by  which  said  mili- 
tary government  is  sustained."  ^^ 

Military  control  may  be  necessary  in  the  time  of  an  insur- 
rection or  other  disturbance,  when  the  ordinary  operations  of 
g;overnmental  organs  are  impossible. 

"If,  in  foreign  invasion  or  civil  war,  the  courts  are  actually 
closed,  and  it  is  impossible  to  administer  criminal  justice  ac- 
cording to  law,  then,  on  the  theater  of  active  military  opera- 
tions, where  war  really  prevails,  there  is  necessity  to  furnish  a 
substitute  for  the  civil  authority,  thus  overthrown,  to  preserve 
the  safety  of  the  army  and  of  society ;  and,  as  no  power  is 
left  but  the  military,  it  is  allowed  to  govern  by  martial  rule 
until  the  laws  can  have  their  free  course.  As  necessity  creates 
the  rule,  so  it  limits  its  duration ;  for,  if  this  government  is 
continued  after  the  courts  are  reinstated,  it  is  a  gross  usurpa- 
tion of  power.  Martial  rule  can  never  exist  where  the  courts 
are  open,  and  in  the  proper  and  unobstructed  exercise  of  their 
jurisdiction.  It  is  also  confined  to  the  locality  of  actual 
war."  3* 

S3  Id.  p.  31.  S4  Ex  parte  Milligan,  4  Wall.  2,  18  L.  Ed.  281. 


344  PRISONERS,  DISABLED,  AND   SHIPWRECKED.        (Ch.  19 

CHAPTER  XIX. 
PRISONERS,  DISABLED,  AND  SHIPWRECKED. 

148.  Prisoners  of  War. 

149.  Treatment  of  Prisoners  of  War. 

150.  Release  of  Prisoners. 

151.  Siclj,   Wounded,   and   Shipwrecked. 

PRISONERS    OF   V/AR. 

148.  Persons  whoni  a  belligerent  may  kill,  capture,  or  deprive 
of  liberty  for  military  reasons  are  entitled  to  be  treat- 
ed as  prisoners  of  virar. 

In  early  times  any  inhabitant  of  a  territory  of  the  enemy 
might  be  made  captive  and  be  put  to  death.  Gradually  those 
of  the  inhabitants  who  from  various  reasons  could  not  par- 
ticipate directly  in  the  hostilities  were  made  exempt.  Toward 
the  end  of  the  fourteenth  century  publicists  advocated  a  gen- 
eral recognition  of  exemption  of  children  and  old  people. 
The  stimulus  to  the  capture  of  such  persons  was  removed,  so 
far  as  certain  states  were  concerned,  by  agreements  that  such 
persons  should  not  be  the  subject  for  ransom.  To  these  ex- 
emptions on  account  of  age,  exemptions  by  reason  of  sex 
and  of  profession  were  added ;  and  women,  priests,  and  certain 
other  persons  engaged  in  professional  work  not  related  to  the 
war  were  also  included  among  those  exempt  from  capture.^ 

Lieber  says  in  1863 : 

"22.  Nevertheless,  as  civilization  has  advanced  during  the 
last  centuries,  so  has  likewise  steadily  advanced,  especially  in 
war  on  land,  the  distinction  between  the  private  individual 
belonging  to  a  hostile  country  and  the  hostile  country  itself, 
with  its  men  in  arms.  The  principle  has  been  more  and  more 
acknowledged  that  the  unarmed  citizen  is  to  be  spared  in  per- 
son, property,  and  honor  as  much  as  the  exigencies  of  war 
will  admit. 

1  Nys.  Les  Origines  du  Droit  International,  p.  237fC. 


§  149)  TREATMENT    OF   PRISONERS    OF   WAR.  345 

"23.  Private  citizens  are  no  longer  murdered,  enslaved,  or 
carried  off  to  distant  parts,  and  the  inoffensive  individual  is  as 
little  disturbed  in  his  private  relations  as  the  commander  of 
the  hostile  troops  can  afford  to  grant  in  the  overruling  de- 
mands of  a  vigorous  war. 

"24.  The  almost  universal  rule  in  remote  times  was,  and 
continues  to  be  with  barbarous  armies,  that  the  private  indi- 
vidual of  the  hostile  country  is  destined  to  suffer  every  priva- 
tion of  liberty  and  protection  and  every  disruption  of  family 
ties.  Protection  was,  and  still  is  with  uncivilized  people,  the 
exception. 

"25.  In  modern  regular  wars  of  the  Europeans,  and  their 
descendants  in  other  portions  of  the  globe,  protection  of  the 
inoffensive  citizen  of  the  hostile  country  is  the  rule ;  privation 
and  disturbance  of  private  relations  are  the  exceptions."  ^ 

Those  liable  to  be  made  prisoners  of  war  at  the  present  time 
include  (1)  the  regular  armed  forces  of  a  belligerent,  as  mem- 
bers of  the  army  and  navy;  (2)  those  who  lawfully  resist  at- 
tack, as  levies  en  masse ;  (3)  those  who  are  permitted  to  ac- 
company the  armed  forces  without  forming  a  part  of  those 
forces,  as  newspaper  correspondents,  sutlers,  contractors,  etc. ; 
(4)  in  exceptional  cases  persons  who  may  be  of  special  service 
to  the  enemy.^ 

TREATMENT   OF   PRISONERS    OF   VTAR. 

149.  (1)  Prisoners  of  wslt  are  in.  the  poiirer  of  the  hostile  gov- 
ernment and  entitled  to  humane  treatment,  xchich  in- 
cludes respect  for  person,  private  property  not  of  a 
military  character,  and  private  rights,  and  reasonahle 
maintenance  in  accordance  ivith  rank. 

(2)  They  may  be  interned,  may  be  given  fit  opportunity  to 

engage   in  remunerative  labor,  or  may  be  paroled. 

(3)  In  order  to   secure  the  treatment  accorded  to  prisoners 

of  -war,  captured  persons  are  under  obligation  to  ob- 
serve regulations,  to  give  on  request  to  the  proper  au- 
thority their  true  name  and  rank,  and  to  observe  the 
conditions  of  parole. 

2  Appendix,  arts.  22-2.1,  p.  491. 

8  Hague  Convention,  irn^T,  Laws  and  Customs  of  War  on  Land,  Ap- 
pendix, pp.  r)37-r>40. 


346  PRISONKRS,  DISABLKD,  AND   SHIPWRECKED.         (Cb.  19 

(4)  Prisoners  of  iirar,  if  taken  trying  to  escape,  are  liable 
to  disciplinary  punisliment  for  attempting  to  escape; 
but  if  tlie  attempt  is  successful,  and  tbey  are  subse- 
quently recaptiired,  tbey  are  not  to  be  punisbed  for  the 
previous  act. 

In  early  warfare  any  inhabitant  of  an  enemy  territory  might 
be  made  a  captive,  might  be  put  to  death,  might  be  enslaved, 
or  might  be  ransomed.  Each  of  tiicse  methods  of  treatment 
marks  a  stage  in  the  development  of  warfare.  Captives,  be- 
ing an  impediment  in  the  movement  of  an  army,  unless  kept 
for  sake  of  ransom,  were  often  slain.  Captives  in  large  num- 
bers were  put  to  death  during  the  fifteenth  century.  The  cap- 
tives made  by  armies  even  up  to  the  seventeenth  century 
were  liable  to  be  sent  into  slavery.  The  captives  were  re- 
garded as  property  of  the  persons  capturing  them,  and  so  late 
as  1863  Dr.  Licber  felt  called  upon  to  state:  "A  prisoner  of 
war,  being  a  public  enemy,  is  the  prisoner  of  tl>e  government, 
and  not  of  the  captor."  *  It  was  not  till  about  the  time  of 
Grotius  that  the  more  liberal  treatment  of  prisoners  of  war 
became  common.  There  had  been  from  time  to  time,  in  very 
early  days,  limitations  upon  the  exercise  of  capture  in  time  of 
war.  Even  in  the  First  and  Second  Punic  Wars,  exchange 
of  prisoners  and  special  consideration  to  certain  private  per- 
sons is  recorded.^  Sallust  denounces  the  putting  to  death  of 
the  inhabitants  of  a  certain  Numidian  town  by  Marius  as  con- 
trary to  the  rules  of  war."  The  fairness  of  treatment  at  one 
period  might  be  followed  by  barbarities  in  the  next,  and  these 
might  extend  to  the  entire  population.  In  the  mediaeval  period 
there  was  great  difference  in  practice.  Toward  the  end  of  the 
seventeenth  century  the  subject  of  capture  in  war  was  con- 
sidered by  various  publicists,  and  the  principles  were  de- 
veloped. 

So  late  as  1785  the  United  States  and  Prussia  provide  by 
treaty  "to  prevent  the  destruction  of  prisoners  of  war."  This 
treaty  sets  forth  many  principles  which  have  subsequently 
been  generally  adopted.'"' 

4  Appendix,  art.  74,  p.  498.  e  Jugurtha,  c.  91. 

5  Livy.  XXII. 

T  "And  to  prevent  the  drstrur-tion  of  prisoners  of  war,  by  sending 
them  into  distant  and  Inclement  countries,  or  by  crowding  them  into 


§  149)  TREATMENT   OP   PRISONERS   OF   WAR,  347 

The  Ilag-ue  Convention  of  1907  provides  with  fullness  for 
the  treatment  of  prisoners  of  war.®  It  provides  that  prisoners 
of  war  shall  be  in  the  power  of  the  government,  that  they 
shall  be  humanely  treated,  the  standard  of  their  maintenance 

close  and  noxious  places,  the  two  contracting  parlies  solemnly  pledge 
themselves  to  each  other  and  to  the  world  that  thoy  will  not  adopt 
any  siich  practice ;  that  neither  will  send  the  prisoners  whom  they 
make  take  from  the  other  int(>  the  East  Indies,  or  any  other  parts 
of  Asia  or  Africa,  but  that  they  shall  be  placed  in  some  part  of  their 
dominions  in  Europe  or  America,  in  wholesome  situations ;  that  they 
shall  not  be  confined  in  dungeons,  pi'ison  ships,  nor  prisons,  nor  bo 
])ut  into  irons,  nor  hound,  nor  otherwise  restrained  in  the  use  of  their 
limbs;  that  the  officers  shall  be  enlarged  on  their  paroles  within 
convenient  districts,  and  have  comfortable  quarters,  and  the  common 
men  be  disposed  in  cantonments  open  and  extensive  enough  for  air 
and  exercise,  and  lodged  in  barracks  as  roomy  and  good  as  are  pro- 
vided by  the  party  in  whose  power  they  are  for  their  own  troops ; 
that  the  officers  shall  also  bo  daily  furnished  by  the  party  in  whose 
power  they  are  with  as  many  rations,  and  of  the  same  articles  and 
quality  as  are  allowed  by  them,  either  in  kind  Oi-  by  commutation,  to 
officers  of  equal  rank  in  their  own  army ;  and  all  others  shall  be 
daily  furnished  by  them  with  such  ration  as  they  allow  to  a  common 
soldier  in  their  own  service;  the  value  whereof  shall  be  paid  by  the 
other  party  on  a  mutual  adjustment  of  accounts  for  the  subsistence 
of  prisoners  at  the  close  of  the  war ;  and  the  said  accounts  shall 
not  be  mingled  with,  or  set  off  against  any  others,  nor  the  balances 
due  on  them  be  withheld  as  a  satisfaction  or  reprisal  for  any  other 
article  or  for  any  other  cause,  real  or  pretended,  whatever;  that 
each  party  shall  be  allowed  to  keep  a  commissary  of  prisoners  of 
their  own  appointment,  with  every  separate  cantonment  of  pris- 
oners in  possession  of  the  other,  which  commissary  shall  s.ee  the  pris- 
oners as  often  as  he  pleases,  shall  be  allowed  to  receive  aiid  dis- 
tribute whatever  comforts  may  be  sent  to  them  by  theiir  friends,  and 
shall  be  free  to  make  his  reports  in  open  letters  to  those  who  employ 
him ;  but  if  any  officer  shall  break  his  parole,  or  any  other  prisoner 
shall  escape  from  the  limits  of  his  cantonment,  after  they  shall  have 
been  designated  to  him,  sucli  individual  officer  or  other  prisoner  shall 
forfeit  so  much  of  the  benefit  of  this  article  as  provides  for  his  en- 
largement on  parole  or  cantonment.  And  it  is  declared,  that  neither 
the  pretence  that  war  dissolves  all  treaties,  nor  any  other  whatever, 
shall  be  considered  as  annulling  or  suspending  this  and  the  next  pre- 
ceding article;  but,  on  the  contrary,  that  the  state  of  war  is  pre- 
cisely that  for  which  they  are  provided,  and  during  which  they  are 
to  be  as  sacredly  observed  as  the  most  acknowledged  articles  in  the 
law  of  nature  or  nations."  Article  24,  Treaty  of  Sept.  10,  1785. 
8  Laws  and  Customs  of  War  on  Land,  c.  2,  Appendix,  p.  .'>.':,s. 


348  PRISONDRS,  DISABLED,  AND   SHIPWRECKED.        (Ch.  19 

being  determined  by  that  of  similar  troops  in  the  captor's 
forces.  They  are  to  be  allowed  to  work,  to  have  so  much 
freedom  as  consistent  with  military  necessity.  Provision  is 
made  for  gathering  and  furnishing  information  in  regard  to 
those  in  captivity  and  for  preserving  their  property  and  other 
legal  rights  and  for  parole. 

By  the  Hague  Convention  of  1907  prisoners  of  war  are  li- 
able to  necessary  discipline  in  order  that  rules  and  regulations 
may  be  observed.  It  recognizes  that  it  is  natural  that  a  pris- 
oner of  war  not  under  parole  should  attempt  to  escape  and 
provides  that, 

"Escaped  prisoners,  who  are  retaken  before  being  able  to 
rejoin  their  own  army,  or  before  leaving  the  territory  occu- 
pied by  the  army  which  captured  them,  are  liable  to  disciplin- 
ary punishment. 

''Prisoners .  who,  after  succeeding  in  escaping,  are  again 
taken  prisoners,  are  not  liable  to  any  punishment  on  account 
of  the  previous  flight."  • 


RELEASE    OF   PRISONERS. 

150.    Prisoners  may  be  released  conditionally  or  fully. 

(a)  Prisoners    may    be    released    conditionally    on    parole,    a 

verbal  agreement,  entered  into  by  an  individual  of  the 
enemy  for  himself,  by  xirhicb  he  pledges  his  honor  that 
he  T^ill  do  or  refrain  from  doing  certain  things  in  con- 
sideration of  certain  privileges  or  advantages.  An  of- 
ficer may  sometimes  make  such  an  agreement  in  behalf 
of  his  command. 

(b)  Prisoners  of  vrar  are   sometimes  fully  released   on  pay- 

ment of  ransom,  in  compensation  for  their  discharge 
from  custody. 

(c)  Or  prisoners  may  be  fully  released  by  exchange,  vrhich 

consists  in  the  mutual  turning  over  by  each  govern- 
ment of  a  certain  number  of  prisoners  in  accord  with 
a  special  agreement,  called  a  "cartel." 

(d)  Prisoners  are  at  liberty  virhen  coming  upon  neutral  soil, 

and  ivhen  brought  into  neutral  ivaters  on  a  ship  taken 
as  prize,  unless  under  stress. 

•  Laws  and  Customs  of  War  on  Land,  art.  VIII,  Appendix,  p.  TiSD. 


§  150)  RELEASE    OF   PRISONERS.  349 

(e)  Prisoners  are  also  at  liberty  on  coming  xrithin  the  terri- 

tory of  tlieir  oxrn  state,  if  not  under  parole   or   other 
obligation. 

(f)  Prisoners    are    generally    released    under    specific    agree- 

ment at  the  close  of  -war. 

(a)  "Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the 
laws  of  their  country  allow,  and,  in  such  cases,  they  are  bound, 
on  their  personal  honor,  scrupulously  to  fulfill,  both  towards 
their  own  government  and  the  government  by  whom  they 
were  made  prisoners,  the  engagements  they  have  contracted. 

"In  such  cases  their  own  government  is  bound  neither  to 
require  of  nor  accept  from  them  any  service  incompatible  with 
the  parole  given. 

"A  prisoner  of  war  cannot  be  compelled  to  accept  his  liberty 
on  parole.  Similarly  the  hostile  government  is  not  obliged  to 
accede  to  the  request  of  the  prisoner  to  be  set  at  liberty  on 
parole. 

"Prisoners  of  war,  liberated  on  parole  and  recaptured  bear- 
ing arms  against  the  government  to  whom  they  had  pledged 
their  honor,  or  against  the  allies  of  that  government,  forfeit 
their  right  to  be  treated  as  prisoners  of  war,  and  can  be 
brought  before  the  courts."  ^** 

A  neutral  power,  which  has  interned  within  its  territory 
troops  belonging  to  the  belligerent  armies,  may  decide  wheth- 
er officers  may  be  allowed  liberty  on  their  parole  not  to  leave 
neutral  territory  without  permission. ^^ 

(b)  The  release  of  prisoners  of  war  on  payment  of  ransom 
was  quite  common  during  the  Middle  Ages,  but  is  now  prac 
tically  obsolete,  although,  in  the  instructions  for  the  govern- 
ment of  the  armies  of  the  United  States  in  the  field  provision 
is  made  as  follows :  "The  surplus  number  of  prisoners  of  war 
remaining  after  an  exchange  has  taken  place  is  sometimes  re- 
leased, either  for  the  payment  of  a  stipulated  sum  of  money, 

10  Id.  arts.  X-XII,  Appendix,  p.  .")39.  For  full  treatment,  see,  also, 
Ariga,  La  Guerre  Russo-Japonaise,  114.  Takahashi,  Int.  Law  applied 
to  Russo-Japanese  War,  107-147. 

11  Rights  and  Duties  of  Neutral  Powers,  art.  XI,  Appendix,  p.  547. 


350  PRISONERS,  DISABLED,  AND   SHIPWRECKED.        (Ch.  19 

or,  in  urgent  cases,  of  provision,  clothing,  or  other  necessaries. 
Such  arrangement,  however,  requires  the  sanction  of  the  high- 
est authority."  ^- 

(c)  No  belligerent  is  compelled  to  exchange  prisoners  of 
war.  Each  has  a  perfect  right  to  keep  all  prisoners  of  war 
until  the  close  of  hostilities.  Agreements  to  exchange  are 
based  purely  upon  mutual  convenience.  If  entered  into,  the 
cartel  sets  forth  all  of  the  terms  of  the  agreement  as  to  time, 
place,  and  method  to  be  pursued.  These  agreements  are  strict- 
ly construed,  violation  of  the  terms  by  one  party  releases  the 
other  party  from  obligation,  and  the  basis  of  exchange  is 
clearly  set  forth.  Strict  equivalents  must  be  given,  such  as 
private  for  private,  rank  for  rank,  etc.  If,  after  all  of  the 
prisoners  have  been  exchanged  upon  the  agreed  basis,  there 
is  a  surplus,  credit  may  be  given  or  payment  made  for  this 
surplus.  Prisoners  who  have  been  exchanged,  like  those  who 
have  escaped  from  confinement,  are  restored  to  their  belliger- 
ent rights.^-' 

(d)  The  belligerent  is  responsible  for  guarding  prisoners  of 
war.  The  retention  of  a  portion  of  the  enemy's  forces  is  an 
incident  of  the  war.  These  prisoners  may  be  released  by  cap- 
ture by  the  forces  of  the  state  to  which  they  belong.  Such  ac- 
tion is  not  lawful  upon  neutralJand  area.  If  belligerents  were 
allowed  to  bring  upon  neutral  land  and  retain  prisoners  of 
war,  such  prisoners  would  be  placed  beyond  the  possibility  of 
release  by  the  forces  to  which  they  belonged,  and  would  be 
even  more  secure  for  the  captor  than  in  his  own  territory. 
Such  a  result  would  not  be  reasonable,  nor  in  accord  with 
neutrality,  and  prisoners  coming  on  neutral  territory  are,  ipso 
facto,  at  liberty.  Similarly,  if  prisoners  of  war  are  not  ef- 
fectively guarded,  and  consequently  escape  to  neutral  terri- 
tory, they  are  free.     The  Hague  Convention  of  1907  says : 

"A  neutral  power  which  receives  escaped  prisoners  of  war 
shall  leave  them  at  liberty.  If  it  allows  them  to  remain  in  its 
territory,  it  may  assign  them  a  place  of  residence. 

12  General  Order  100,  U.  S.  Army.  April  24,  180^,  art.  108,  Appen- 
dix, p.  502;   2  Halleck,  Int.  I^w,  304. 

13  Id.  §  7,  Appendix,  p.  503. 


§  150)  RELEASE    OF   PRISONERS.  351 

"The  same  rule  applies  to  prisoners  of  war  brought  by 
troops  taking  refuge  in  the  territory  of  a  neutral  power."  ^* 

There  has  been  great  variation  of  practice  in  the  treatment 
of  captured  vessels  brought  into  neutral  ports;  but  the  gen- 
eral trend  in  recent  years,  as  shown  in  neutrality  proclama- 
tions and  practice,  is  toward  a  strict  regulation  of  the  entrance 
of  vessels  with  prize,  and  in  most  instances  states  have  prohib- 
ited entrance  except  in  case  of  stress.  The  Hague  Conven- 
tion of  1907  enumerates  the  rule  that: 

"A  prize  may  only  be  brought  into  a  neutral  port  on  account 
of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions. 

"It  must  leave  as  soon  as  the  circumstances  which  justified 
its  entry  are  at  an  end.  If  it  does  not,  the  neutral  power  must 
order  it  to  leave  at  once ;  should  it  fail  to  obey,  the  neutral 
power  must  employ  the  means  at  its  disposal  to  release  it  with 
its  officers  and  crew  and  to  intern  the  prize  crew." 

This  provision  is  somewhat  modified  by  the  provision  in  re- 
gard to  sequestration,  which  has  not  been  accepted  by  the 
United  States  and  some  of  the  other  powers. ^^ 

(e)  As  captivity  continues  only  during  effective  holding,  a 
prisoner  of  war  is  usually  at  liberty  on  entering  the  jurisdic- 
tion of  his  own  state,  or  coming  within  the  area  of  military 
occupation  of  his  own  forces.  The  prisoner  on  parole  is  still 
regarded  as  under  the  control  of  the  state  which  made  him  a 
prisoner,  for  he  is  not  under  obligation  to  accept  liberty  on 
parole,  but  is  under  observation  to  observe  it  when  once  ac- 
cepted, and  his  state  should  neither  "require  of  nor  accept 
from  him  any  service"  incompatible  with  the  parole  given. ^*' 

(f)  The  Hague  Convention  of  1907  provides  that,  "after 
the  conclusion  of  peace,  the  repatriation  of  prisoners  of  war 
shall  be  carried  out  as  quickly  as  possible."  ^"^ 

14  Rights    and    Duties   of    Neutral    Powers,    art.    XIII,    Appendix, 

p.  547. 

15  Rights  and  Duties  of  Neutral  Powers  in  Naval  War,  arts.  XXI- 
XXIII,  Appendix,  p.  566. 

16  Laws  and  Customs  of  War  on  Land,  art.  X,  Appendix,  p.  539. 

17  Id.  art.  XX. 


352  PRISONERS,  DISABLED,  AND   SHIPWRECKED.        (Ch.  19 

The  treaty  of  peace  between  Spain  and  the  United  States  in 
1898  even  provided  in  article  V  that : 

''The  United  States  will,  upon  the  signature  of  the  present 
treaty,  send  back  to  Spain,  at  its  own  cost,  the  Spanish 
soldiers  taken  as  prisoners  of  war  on  the  capture  of  Manila  by 
the  American  forces.  The  arms  of  the  soldiers  in  question 
shall  be  restored  to  them. 

"Spain  will,  upon  the  exchange  of  the  ratifications  of  the 
present  treaty,  proceed  to  evacuate  the  Philippines,  as  well  as 
the  island  of  Guam,  on  terms  similar  to  those  agreed  upon  by 
the  commissioners  appointed  to  arrange  for  the  evacuation  of 
Porto  Rico  and  other  islands  in  the  West  Indies,  under  the 
protocol  of  August  12,  1898,  which  is  to  continue  in  force  till 
its  provisions  are  completely  executed. 

"The  time  within  which  the  evacuation  of  the  Philippine 
Islands  and  Guam  shall  be  completed  shall  be  fixed  by  the  two 
governments.  Stands  of  colors,  uncaptured  war  vessels,  small 
arms,  guns  of  all  calibers,  with  their  carriages  and  accessories, 
powder,  ammunition,  live  stock,  and  materials  and  supplies  of 
all  kinds,  belonging  to  the  land  and  naval  forces  of  Spain  in 
the  Philippines  and  Guam,  remain  the  property  of  Spain. 
Pieces  of  heavy  ordinance,  exclusive  of  field  artillery,  in  the 
fortifications  and  coast  defenses,  shall  remain  in  their  em- 
placements for  the  term  of  six  months,  to  be  reckoned  from 
the  exchange  of  ratifications  of  the  treaty;  and  the  United 
States  may,  in  the  meantime,  purchase  such  material  from 
Spain,  if  a  satisfactory  agreement  between  the  two  govern- 
ments on  the  subject  shall  be  reached. 

"Article  VI.  Spain  will,  upon  the  signature  of  the  present 
treaty,  release  all  prisoners  of  war,  and  all  persons  detained 
or  imprisoned  for  political  ofifenses,  in  connection  with  the  in- 
surrections in  Cuba  and  the  Philippines  and  the  war  with  the 
United  States. 

"Reciprocally,  the  United  States  will  release  all  persons 
made  prisoners  of  war  by  the  American  forces,  and  will  un- 
dertake to  obtain  the  release  of  all  Spanish  prisoners  in  the 
hands  of  the  insurgents  in  Cuba  and  the  Philippines. 

"The  government  of  the  United  States  will  at  its  own  cost 
return  to  Spain,  and  the  government  of  Spain  will  at  its  own 


§  151)  SICK,  WOUNDED,  AND   SHIPWRECKED.  353 

cost  return  to  the  United  States,  Cuba,  Porto  Rico,  and  the 
Phihppines,  according  to  the  situation  of  their  respective 
homes,  prisoners  released  or  caused  to  be  released  by  them,  re- 
spectively, under  this  article." 

SICK,   WOUNDED,   AND    SHIPWRECKED. 

151.  There  are  special  regulations  for  the  care  of  the  sick  and 
vp^ounded  of  armies,  and  of  the  sick,  -nronnded,  and  ship- 
ivrecked  of  naval  forces  in  time  of  -wav. 

Persons  whose  business  was  to  care  for  the  sick  and  wound- 
ed seem  to  have  been  attached  to  some  armies  during  the  six- 
teenth century,  and  the  practice  became  more  and  more  com- 
mon from  that  time.  Such  persons  were  at  first  exempt,  be- 
cause noncombatants,  and  in  order  that  their  army  might  be  in 
better  condition  were  to  give  attention,  particularly  to  their 
own  forces.  It  was  not  till  the  latter  half  of  the  eighteenth 
century  that  the  idea  of  humanity,  based  on  the  liberal  theories 
of  the  period,  led  to  the  doctrine  that  there  should  be  no  dis- 
tinction in  the  treatment  of  wounded  in  battle.^*  At  about  the 
same  time  immunities  began  to  be  generally  extended  to  mil- 
itary hospitals,  and  the  wounded  and  sick  were  not  regarded 
as  prisoners  of  war.  The  wars  of  the  first  sixty  years  of  the 
nineteenth  century  showed  great  diversity  in  practice  in  treat- 
ment of  the  question.  Some  of  these  v\Aars,  particularly  the 
Crimean  War,  from  1854  to  1856,  showed  the  need  of  estab- 
lished rules.  During  the  American  Civil  War  regulations 
were  adopted  by  the  United  States  as  follows : 

"53.  The  enemy's  chaplains,  officers  of  the  medical  staff, 
apothecaries,  hospital  nurses,  and  servants,  if  they  fall  into  the 
hands  of  the  American  army,  are  not  prisoners  of  war,  un- 
less the  commander  has  reasons  to  retain  them.  In  this  latter 
case,  or  if,  at  their  own  desire,  they  are  allowed  to  remain 
with  their  captured  companions,  they  are  treated  as  prisoners 
of  war,  and  may  be  exchanged  if  the  commander  sees  fit." 

"79.  Every  captured  wounded  enemy  shall  be  medically 
treated,  according  to  the  ability  of  the  medical  staff." 

1 8  Bogaiewsky,  Les  Secours  aux  Militaires  Malades  et  Blesses 
avaut  le  XIX«  Siecle,  10  R.  G.  D.  I.  P.  p.  217. 

WiLS.lNT.L.— 23 


354  PRISONERS,  DISABLED,  AND   SHIPWRECKED.        (Ch.  19 

"115.  It  is  customary  to  desij^nate  by  certain  flags  (usually 
yellow)  the  hospitals  in  places  which  are  shelled,  so  that  the 
besieging  enemy  may  avoid  firing  on  them.  The  same  has 
been  done  in  battles,  when  hospitals  are  situated  within  the 
field  of  the  engagement. 

''116.  Honorable  belligerents  often  request  that  the  hospitals 
within  the  territory  of  the  enemy  may  be  designated,  so  that 
they  may  be  spared. 

"An  honorable  belligerent  allows  himself  to  be  guided  by 
flags  or  signals  of  protection  as  much  as  the  contingencies  and 
the  necessities  of  the  fight  will  permit."  ^° 

Largely  through  the  eflforts  of  Gustave  Moynier  ^°  and  Jean 
Henri  IXinant-^  of  Switzerland,  representatives  of  twelve 
states  gathered  on  the  invitation  of  the  Swiss  government  and 
formulated  the  Geneva  Convention  for  the  Amelioration  of 
the  Condition  of  Soldiers  Wounded  in  Armies  in  the  Field, 
1864.  This  convention  formulated  the  best  ideas  of  the  time. 
From  the  provision  that  the  hospital  flag  should  "bear  a  red 
cross  on  a  white  ground"  the  reverse  of  the  Swiss  flag,  the 
convention  was  frequently  called  the  Red  Cross  Convention. 
At  another  conference,  held  at  Geneva  in  1868,  fifteen  further 
articles  were  adopted,  five  being  in  amplification  of  the  con- 
vention of  1861,  and  the  remaining  articles  with  view  to  adap- 
tation of  the  provisions  to  naval  warfare.  These  last  articles 
were  embodied  in  The  Hague  Convention  of  1899  for  the 
Adaptation  of  the  Principles  of  the  Geneva  Convention  of 
1861  to  Maritime  Warfare.  A  new  convention  was  concluded 
at  Geneva  in  1906  which,  while  embodying  the  principles  of 
the  convention  of  186-1,  brought  its  provisions  more  nearly 
into  accord  with  present  conditions.  The  delegates  of  thirty- 
five  powers  signed  the  convention  of  1906. ^^ 

The  adoption  of  this  convention  of  1906  made  it  necessary 
to  revise  the  convention  of  1899,  and  at  the  Hague  Conference 

19  Appendix,  pp.  496,  498,  502,  503. 

2  0  Moynier,  In  recognition  of  his  humanitarian  services,  was  made 
honary  president  of  the  Geneva  Convention  of  1906. 

21  Dunant  was  in  1901  awarded  the  Nobel  prize  for  his  efforts  to 
mitigate  the  severity  of  war.  Dunant's  booli.  Le  Souvenir  de  Sol- 
ferino,  1862,  called  attention  to  the  sufferings  in  modem  warfare. 

2  2  The  Geneva  Convention  of  1906,  Appendix,  p.  508. 


§  151)  SICK,  WOUNDED,  AND    SHIPWRECKED.  355 

of  1907,  a  Convention  for  the  Adaptation  of  the  Principles  of 
the  Geneva  Convention  of  1906  was  concluded.  The  fourteen 
articles  of  the  convention  of  1899  were  extended  to  twenty- 
eight  and  considerably  elaborated. 

The  convention  of  1906  provides  for  the  care  of  the  sick  and 
wounded  of  an  army,  for  the  sanitary  formations  and  estab- 
lishments, for  the  personnel  and  materiel,  and  for  a  distinctive 
emblem,  the  Red  Cross. 

The  convention  of  1907,  adapting  the  convention  of  1906 
to  naval  warfare,  specifies  how  the  status  of  hospital  ships 
shall  be  made  known  in  order  that  they  may  be  exempt,  how 
they  shall  be  painted  in  order  to  be  easily  distinguished,  what 
other  means  shall  be  taken  to  make  themselves  known,  and  for 
the  degree  of  control  to  be  exercised  over  hospital  ships  by 
belligerents,  the  degree  of  immunity  which  shall  be  accorded 
to  them,  and  their  obligations  and  duties.  No  distinction  is 
to  be  made  in  the  treatment  of  the  sick  or  wounded  of  different 
belligerents. 

"The  shipwrecked,  wounded,  or  sick  of  one  belligerent  who 
fall  into  the  power  of  the  other  belligerent  are  prisoners  of 
war." 

"Art.  12.  Any  ship  of  war  belonging  to  a  belligerent  may 
demand  the  surrender  of  the  wounded,  sick,  or  shipwrecked 
who  are  on  board  military  hospital  ships,  hospital  ships  be- 
longing to  rehef  societies  or  to  private  individuals,  merchant 
ships,  yachts,  and  boats,  whatever  the  nationality  of  such  ves- 
sels. 

"Art.  13.  If  wounded,  sick,  or  shipwrecked  persons  are 
taken  on  board  a  neutral  war  ship,  precaution  must  be  taken, 
so  far  as  possible,  that  they  do  not  again  take  part  in  the  op- 
erations of  the  war."  ^^ 

After  an  engagement  the  belligerents  are  also  to  take  such 
measures  as  possible  to  recover  and  protect  those  shipwrecked, 
wounded,  or  sick,  and  are  to  inform  each  other  so  far  as  pos- 
sible in  regard  to  admissions  to  hospitals,  deaths,  etc. 

Article  12  would  apply  to  the  questions  raised  in  the  case 
of  the  Deerhound,  a  neutral  yacht  which  took  on  board  and 

23  The  Convention  for  Adaptation  of  the  Principles  of  the  Geneva 
Convention  to  Maritime  Warfare,  Appendix,  p.  549. 


356  PRISONERS,  DISABLED,  AND   SHIPWRECKED.        (Ch.  19 

declined  to  deliver  to  the  United  States  commander  the  cap- 
tain and  some  of  the  crew  of  the  Confederate  cruiser  Alaba- 
ma, on  June  19,  1.S6I,  after  her  defeat.  This  article  seems 
reasonable,  as  such  ships  as  the  Deerhound  are  not  to  harbor 
those  who  may,  if  not  received  on  board  neutral  vessels,  be 
made  prisoners  of  war. 

Article  13  would  be  analogous  to  the  entrance  of  belligerent 
troops  upon  neutral  land  area,  and  would  imply  that  they 
should  be  practically  interned.  This  is  in  accord  with  the  ac- 
tion in  the  Chemulpo  affair  in  1904,  when,  after  the  defeat  of 
certain  Russian  vessels  by  the  Japanese,  neutral  war  vessels 
took  on  board  wounded,  sick,  and  shipwrecked  Russians,  and 
sent  them  to  neutral  ports  under  parole  that  they  would  not 
again  take  part  in  the  war.^* 

2*  Takahashi,  Russo-Japanese  War,  p.  462. 


§  163)  NON-HOSTILE  RELATIONS.  357 

CHAPTER  XX. 

NON-HOSTILE  RELATIONS  BETWEEN  BELLIGERENTS. 

152.  Non-Hostile  Relations  between  Belligerent  Forces. 

153.  Flags  of  Truce. 

154.  Capitulations. 

155.  Armistices. 

156.  Operation  of  Armistices. 

157.  Cartels. 

158.  Safe-conducts  and  Passports. 

159.  Safeguards. 

160.  Licenses  to  Trade. 

NOX-HOSTILE    REI<ATIONS    BETV/^EEN    BEI,I.IGEBENT 

FORCES. 

152.  Under   the    term    "commercia   belli"    is    included    certain 

non-hostile  relations  into  'whicli  belligerents  enter  dur- 
ing iirar. 

Non-hostile  relations  between  belligerents  during  the  war 
are  in  general  suspended.  It  is  necessary,  however,  for  special 
purposes  that  certain  relations  be  established.  These  rela- 
tions may  refer  to  the  conduct  or  cessation  of  hostilities. 
These  relations  are  based  upon  good  faith.  Under  the  term 
"commercia  belli"  are  usually  included  flags  of  truce,  capitula- 
tions, armistices,  cartels,  safe-conducts  and  passports,  safe- 
guards, and  licenses  to  trade. 

FLAGS    OF   TRUCE. 

153.  Flags  of  truce  are  -white  flags,  used  as  signals  to  indicate 

that    a    belligerent    Avishes    to    communicate    trith    the 
enemy. 

The  person  bearing  a  flag  of  truce,  together  with  the  bugler 
or  drummer,  and  the  interpreter  who  may  accompany  him,  are 
considered  as  inviolate,  though  he  may  not  be  received,  or  may 
be  prevented  from  taking  any  advantage  of  his  position;  e. 
g.,  he  may  be  blindfolded.  He  is  not  regarded  as  a  spy  if  he 
discloses  such  information  as  he  obtains  openly.    He  loses  his 


358  NON-UOSTILE   RELATIONS.  (Ch.  20 

privileged  position  if  he  provokes  or  commits  an  act  of  treach- 
ery. The  flag  of  truce  will  not  protect  him,  under  such  cir- 
cumstances, from  seizure  and  execution.^  There  is  no  obliga- 
tion upon  the  part  of  the  belligerent  to  receive  the  bearer  of 
a  flag'  of  truce,  and  after  the  bearer  has  been  warned  and  giv- 
en time  to  withdraw  he  acts  at  his  own  risk.  The  bearer  of 
a  flag  of  truce  must  be  authorized  to  enter  into  communica- 
tion with  the  belligerent,  which  implies  that  the  flag  must  be 
used  for  legitimate  purposes,  for  the  bearer  may  be  detained 
in  case  of  abuse  of  the  privilege.  Military  operations  are  not 
necessarily  suspended  because  of  the  approach  of  a  bearer  of 
a  flag  of  truce,  if  he  has  been  warned  that  he  will  not  be  re- 
ceived. Such  warning  is  usually  given  by  signal.  A  belliger- 
ent may  specify  a  period  during  which  no  flag  of  truce  will 
be  received,  and  during  that  period  bearers  of  flags  of  truce 
have  no  privileges. 

In  maritime  warfare  the  conditions  are  such  that  the  cessa- 
tion of  hostilities  on  the  approach  of  the  bearer  of  a  flag  of 
truce  might  materially  change  the  issue  of  the  battle.  As  the 
commanding  officer  is  responsible,  it  is  for  him  to  determine 
whether  the  bearer  of  the  flag  of  truce  shall  be  met.  The  ap- 
proach of  such  a  flag  should  therefore  be  made  known  to  him. 
A  shot  across  the  bows  of  the  boat  bearing  the  flag  of  truce 
is  a  signal  not  to  come  nearer.  If  the  flag  is  to  be  received,  a 
boat  flying  a  white  flag  with  an  authorized  officer  will  meet  the 
enemy's  representative. 

CAPITULATIONS. 

154.  Capitulations  are  agreements  entered  into  between  com- 
manding officers  in  regard  to  the  surrender  of  a  vessel, 
a  place,  or  military  forces. 

In  entering  into  a  capitulation,  a  commander  should  act 
within  his  competence.    The  effect  of  such  an  agreement  should 

1  Hague  Convention  1907,  Laws  and  Customs  of  War  on  Land,  c. 
Ill,  Appendix,  p.  542. 

The  Japanese  in  1904  claimed  that  their  fire  upon  troops  bearing 
a  white  flag  was  because  the  flag  was  used  in  a  treacherous  man- 
ner.    Arigs,  La  Guerre  Russo-Japonaise,  p.  2.50. 


§  154)  CAPITULATIONS.  359 

be  military,  and  not  political.  If  an  agreement  is  in  excess  of 
the  commander's  authority,  it  must  receive  subsequent  ratifica- 
tion by  the  proper  authority.  The  Hague  Convention  of  1907 
provides : 

"Article  XXXV.  Capitulations  agreed  upon  between  the 
contracting  parties  must  take  into  account  the  rules  of  military 
honor. 

"Once  settled,  they  must  be  scrupulously  observed  by  both 
parties."  - 

The  two  main  clauses  of  the  terms  of  capitulation  of  Port 
Arthur  on  January  2,  1905,  were : 

"Art.  I.  The  military  and  naval  forces  of  Russia  in  the 
fortress  and  harbor  of  Port  Arthur,  as  well  as  the  volunteers 
and  the  officials,  shall  all  become  prisoners. 

"Art.  II.  The  forts  and  fortifications  of  Port  Arthur,  the 
warships  and  other  craft,  including  torpedo  craft,  the  arms, 
the  ammunition,  the  horses,  all  and  every  material  for  war- 
like use,  shall  be  handed  over  as  they  are  to  the  Japanese 
army." 

Other  clauses  provide  for  the  carrying  out  of  the  surrender, 
the  treatment  of  the  combatants  and  noncombatants,  and  mi- 
nor details.  In  article  VII  it  was  specially  provided  that  "the 
Japanese  army,  as  an  honor  to  the  brave  defense  made  by  the 
Russian  army,  will  allow  the  officers  of  the  Russian  military 
and  naval  forces  and  the  officials  attached  to  the  said  forces  to 
retain  their  swords,  together  with  all  privately  owned  articles 
directly  necessary  for  daily  existence.  Further,  with  regard 
to  the  said  officers,  officials,  and  volunteers,  such  of  them  as 
solemnly  pledge  themselves  in  writing  not  to  bear  arms  again 
until  the  close  of  the  present  war,  and  not  to  perform  any  act 
of  whatsoever  kind  detrimental  to  the  interests  of  Japan,  shall 
be  permitted  to  return  to  their  country,  and  one  soldier  shall 
be  allowed  to  accompany  each  officer  of  the  army  or  navy. 
These  soldiers  shall  be  required  to  give  a  similar  pledge,"  " 

2  Laws  and  Customs  of  War  on  Land,  c.  IV,  Appendix,  p.  542. 
8  Takahashi,  Russo-Japanese  War,  pp.  211,  212. 


360  NON-HOSTJLE   RELATIONS.  (Ch.  20 


ARMISTICES. 

155.    An   armistice   is   a   suspension   of  military   operations   by 
agreement  l3etw^een  the  belligerents. 
Armistices  may  be: 

(a)  Definite  or  indefinite. 

(b)  General  or  local. 

(a)  A  definite  armistice  prescribes  the  time  at  which  it  will 
become  operative  and  iL>  duration.  An  indefinite  armistice 
makes  it  possible  for  a  belligerent  to  resume  hostilities  at  any 
time,  subject  to  the  conditions  agreed  upon  in  the  terms. 

(b)  A  general  armistice  suspends  all  military  operations  be- 
tween the  belligerents.  A  local  armistice  suspends  hostilities 
wnthin  a  given  area  or  between  specified  forces.* 

The  terms  "suspension  of  arms"  and  "truce"  are  also  used 
to  describe  such  agreements. 

The  armistice  signed  by  the  Russian  and  Japanese  plenipo- 
tentiaries preliminary  to  the  coming  into  operation  of  the 
Treaty  of  Portsmouth  in  1905  was  as  follows: 

"1.  A  certain  distance  (zone  of  demarcation)  shall  be  fixed 
between  the  fronts  of  the  armies  of  the  two  powers  in  Man* 
churia,  as  well  as  in  the  region  of  the  Tomanko. 

"2.  The  naval  forces  of  one  of  the  belligerents  shall  no? 
Dombard  territory  belonging  to  or  occupied  by  the  other. 

"3.  Maritime  captures  will  not  be  suspended  by  the  armis- 
tice. 

"4.  During  the  term  of  the  armistice  reinforcements  shall 
not  be  dispatched  to  the  theater  of  war.  Those  which  are  en 
route  shall  not  be  dispatched  to  the  north  of  Moukden  on  the 
part  of  Japan  and  to  the  south  of  Harbin  on  the  part  of  Rus- 
sia. 

"5.  The  commanders  of  the  armies  and  fleets  of  the  two 
powers  shall  determine  on  common  accord  the  conditions  of 
the  armistice  in  conformity  with  the  provisions  above  enu- 
merated. 

"6.  The  two  governments  shall  give  orders  to  their  com- 
manders immediately  after  the  signature  of  the  Treaty  of 
Peace  in  order  to  put  this  protocol  into  execution."  * 

4  Laws  and  Customs  of  War  on  Land,  c.  V,  Appendix,  p.  542. 

5  TaUahashi,  Russo-Japanese  War,  p.  219. 


§  156)  OPERATION    OF   ARMISTICES.  361 


OPERATIOX    OF   ARMISTICES. 

156.  The  suspension  of  hostilities  commences  on  notification 
of  the  existence  of  the  armistice,  or  at  the  time  fixed  in 
the  agreement,  and  continues  in  accord  v^ith  its  terms 
for  the  time  specified,  unless  denounced  for  good  cause. 

In  case  of  an  armistice  or  truce,  hostilities  are  suspended 
immediately  on  notification,  or  at  a  fixed  time. 

When  the  armistice  or  truce  is  general,  and  extends  over 
a  large  area  of  hostile  operations,  the  custom  is  to  fix  different 
dates  for  the  different  localities,  so  as  to  permit  time  for  re- 
ceipt of  the  news  at  these  places. 

A  subordinate  officer  is  bound  only  in  case  of  notification 
from  a  superior  authority,  not  by  a  statement  of  the  enemy. 

In  the  protocol  of  August  12,  1898,  preliminary  to  the 
treaty  of  peace  between  the  United  States  and  Spain,  it  was 
stipulated  that : 

''Article  VI.  Upon  the  conclusion  and  signing  of  this  pro- 
tocol, hostilities  between  the  two  countries  shall  be  suspended, 
and  notice  to  that  effect  shall  be  given  as  soon  as  possible  by 
each  government  to  the  commanders  of  its  military  and  naval 
forces." 

In  a  proclamation  of  President  McKinley  of  the  same  date 
he  said : 

"Whereas,  it  is  in  said  protocol  agreed  that  upon  its  conclu- 
sion and  signature  hostilities  between  the  two  countries  shall 
be  suspended,  and  that  notice  to  that  effect  shall  be  given  as 
soon  as  possible  by  each  government  to  the  commanders  of  its 
military  and  naval  forces  : 

"Now,  therefore,  I,  William  McKinley,  President  of  the 
United  States,  do,  in  accordance  with  the  stipulations  of  the 
protocol,  declare  and  proclaim  on  the  part  of  the  United 
States  a  suspension  of  hostilities,  and  do  hereby  command 
that  orders  be  immediately  given  through  the  proper  channels 
to  the  commanders  of  the  military  and  naval  forces  of  the- 
United  States  to  abstain  from  all  acts  inconsistent  with  this 
proclamation."  * 

«  30  Stat.  17S0. 


362  NON-HOSTILE   RELATIONS.  (Ch.  20 

The  usual  effect  of  an  armistice  or  truce  is  to  suspend  all 
hostile  operations  of  an  active  nature,  with  the  implied  under- 
standing that  conditions  shall  remain  as  at  the  commencement 
of  the  armistice,  and  all  acts  during  the  armistice  tending  to 
strengthen  a  belligerent,  which  his  enemy  would  be  in  a  posi- 
tion to  prevent,  were  it  not  for  the  truce,  are  prohibited.  Op- 
erations which  could  be  carried  on  irrespective  of  the  armis- 
tice, in  general,  are  permissible. 

"It  rests  with  the  contracting  parties  to  settle,  in  the  terms 
of  the  armistice,  what  communications  may  be  held  in  the 
theater  of  war  with  the  inhabitants,  and  between  the  inhabit- 
ants of  one  belligerent  state  and  those  of  the  other. 

"Any  serious  violation  of  the  armistice  by  one  of  the  par- 
ties gives  the  other  party  the  right  of  denouncing  it,  and  even, 
in  cases  of  urgency,  of  recommencing  hostilities  immediately. 

"A  violation  of  the  terms  of  the  armistice  by  private  per- 
sons acting  on  their  own  initiative  only  entitles  the  injured 
party  to  demand  the  punishment  of  the  offenders,  or,  if  nec- 
essary, compensation  for  the  losses  sustained."  ^ 

In  case  an  armistice  is  not  denounced,  and  there  is  no  time 
specified  for  its  termination,  hostilities  may  be  resumed  after 
warning  agreed  upon  between  the  belligerents.  If  a  time  for 
its  termination  is  fixed  in  the  agreement,  hostilities  may  be 
resumed  after  that  time. 

CARTELS. 

157.  Cartels  are  agreements  betTreen  belligerents  for  the  pur- 
pose of  regulating  permitted  intercourse  in  time  of 
war,  particularly  the  exchange  and  treatnxent  of  pris- 
oners. 

Conventional  agreements  of  the  nature  of  cartels  seem  to 
have  been  in  use  as  early  as  the  middle  of  the  sixteenth  cen- 
tury and  to  have  been  in  common  use  during  the  Thirty  Years 
War,  1618-1648.  These  agreements  sometimes  fixed  the  ratio 
of  exchange  of  prisoners  and  the  amount  of  money  to  be  paid 
for  each  prisoner  in  excess  of  the  even  exchange  number.    In 

T  Laws  and  Customs  of  War  on  Laud,  arts.  XXXIX-XLI,  Appen- 
dix, p.  543. 


§  157)  CARTELS.  363 

a  treaty  between  the  United  States  and  Prussia  in  1785,  very 
liberal  rules  for  the  treatment,  care,  and  parole  of  prisoners 
of  war  were  made.  In  many  respects  the  most  advanced  reg- 
ulations of  the  present  day  are  not  more  humane.  There  is 
a  provision  "that  each  party  shall  be  allowed  to  keep  a  com- 
missary of  prisoners  of  their  own  appointment,  with  every 
separate  cantonment  of  prisoners  in  possession  of  the  other, 
.which  commissary  shall  see  the  prisoners  as  often  as  he  pleas- 
es, shall  be  allowed  to  receive  and  distribute  whatever  com- 
forts may  be  sent  to  them  by  their  friends,  and  shall  be  free 
to  make  his  reports  in  open  letters  to  those  who  employ  him." 
That  this  and  other  similarly  enlightened  provisions  might  not 
fail,  the  treaty  further  specifies  in  article  24 :  "And  it  is  de- 
clared that  neither  the  pretense  that  war  dissolves  all  treaties, 
nor  any  other  whatever,  shall  be  considered  as  annulling  or 
suspending  this  and  the  next  preceding  article ;  but,  on  the 
contrary,  that  the  state  of  war  is  precisely  that  for  which  they 
are  provided,  and  during  which  they  are  to  be  as  sacredly  ob- 
served as  the  most  acknowledged  articles  in  the  law  of  nature 
or  nations." 

Both  belligerents  are  bound  to  observe  the  terms  of  the 
cartel,  and  they  "are  of  such  force  under  the  law  of  nations 
that  even  the  sovereign  cannot  annul  them."  ® 

In  case  vessels  are  concerned  in  the  performance  of  a  cartel 
contract,  such  vessels  are  exempt  from  capture  and  entitled 
to  protection  of  both  belligerents  so  long  as  strictly  engaged 
in  the  exchange.  Any  departure  from  the  strict  line  of  serv- 
ice under  the  engagement  may  make  the  vessel  liable  under 
the  ordinary  laws  of  war.  Such  vessels  are  not  to  be  armed 
or  prepared  for  carrying  on  hostilities,  though  they  may  carry 
a  gun  for  saluting  purposes. 

8  United  States  v.  Wright,  28  Fed.  Cas.  796. 


364  NON-HOSTILB   RELATIONS.  (Ch.  20 


SAFE-CONDUCTS  AND  PASSPORTS. 

158.  A  safe-conduct  is  a  form  of  pass  issued  by  a  command- 
ing officer  in  a  region,  autliorizing  an  enemy  subject  to 
travel  under  specified  conditions  as  to  time  and  place 
in  that  region. 

Safe-conducts  are  also  issued  to  permit  the  carriage  of  goods 
to  a  specified  place. 

General  permission  to  travel  in  the  area  belonging  to  or  oc- 
cupied by  a  belligerent  is  sometimes  issued  by  the  gov- 
ernment in  the  form  of  a  passport. 

The  safe-conduct  is  issued  by  the  commanding  officer  in 
the  region.  The  passport  is  granted  by  the  government. 
They  are  ahke  not  transferable,  and  liable  to  be  withdrawn  if 
not  properly  used  or  for  military  reasons. 


SAFEGUARDS. 

159.  A  safeguard  is  a  protection  granted  either  to  x>ersons  or 
property  within  the  limits  of  the  command,  and  con- 
sists either  in  a  ivritten  order  or  a  guard  of  soldiers. 

When  a  safeguard  is  in  the  form  of  a  written  order,  it  may 
be  given  to  the  enemy  subject  or  may  be  posted  upon  the  prop- 
erty. Property  thus  protected  usually  is  semi-public  in  char- 
acter, as  museums,  libraries,  etc.  Safeguard  in  the  form  of 
a  detail  of  one  or  more  soldiers  may  also  be  given.  In  such 
case  this  guard  is  inviolable,  and  if  they  fall  into  the  power  of 
the  enemy  must  be  treated  with  consideration  and  be  sent  back 
to  their  command. 

The  term  "safeguard,"  or  "safe-conduct,"  is  sometimes 
used  to  describe  the  copy  of  a  ransom  bill  retained  by  the  mas- 
ter of  a  vessel  who  has  purchased  his  release  from  capture,  as 
this  serves  to  protect  him  from  capture  by  vessels  of  the  bellig- 
erent from  which  he  has  purchased  his  release,  provided  he  ob- 
serves the  conditions  under  which  he  has  been  released. 


§  160)  LICENSES   TO   TRADB.  365 


LICENSES    TO   TRADE. 

160.  Iiicenes  to  trade  are  ^vritten  permissions,  authorizing  a 
person  in  time  of  ivar  to  carry  on  trade  witli  a  partic- 
ular place  or  in  specified  articles. 

The  arrangements  in  regard  to  licenses  to  trade,  as  of  safe- 
conducts  and  passports,  are,  in  general,  matters  of  municipal 
rather  than  international  law;  but,  like  cartels,  their  provi- 
sions must  be  strictly  observed  in  order  to  retain  the  privileges 
which  they  confer,  though  failure  to  observe  the  terms  of  the 
license  in  consequence  of  stress  of  weather  or  other  necessity 
will  receive  consideration.®  The  sailing  under  the  license  of 
an  enemy  may  subject  a  vessel  to  capture  and  condemnation 
by  its  own  state.^" 

During  the  Spanish-American  War  in  1898  the  counsel  of 
the  Equitable  Life  Assurance  Society  of  the  United  States  de- 
sired of  the  State  Department  authority  to  apply  to  the  Span- 
ish government  for  "a  license  that  will  enable  it  to  protect  its 
real  estate  and  other  assets  in  Spain."  In  reply  Mr.  Moore 
said: 

"In  this  relation,  the  Department  desires  to  refer  to  article 
XIII  of  the  treaty  between  the  United  States  and  Spain,  con- 
cluded at  San  Lorenzo  el  Real,  October  22,  1795. 

"The  provisions  of  the  article  are  as  follows : 

"  'For  the  better  promoting  of  commerce  on  both  sides,  it 
is  agreed  that,  if  a  war  shall  break  out  between  the  said  two 
nations,  one  year  after  the  proclamation  of  the  war  shall  be 
allowed  to  the  merchants  in  the  cities  and  towns  where  they 
shall  live  for  collecting  and  transporting  their  goods  and  mer- 
chandises ;  and  if  anything  be  taken  from  them,  or  any  in- 
jury be  done  them,  within  that  term,  by  either  party,  or  the 
people  or  subjects  of  either,  full  satisfaction  shall  be  made  for 
the  same  by  the  government.'  "  ^^ 

9  The  Sea  Lion,  5  Wall.  630,  18  L.  Ed.  618;  Coppell  v.  Hall,  7  Wail. 
542,  19  L.  Ed.  244 ;  Siffkin  v.  Glover,  4  Taunt.  717. 

10  The  Hiram,  8  Cranch,  444,  3  L.  Ed.  619;  The  Aurora,  8  Cranch, 
203,  3  L.  Ed.  536 ;  The  Julia,  8  Cranch,  181,  3  L.  Ed.  528 ;  The  Cale- 
donian, 4  Wheat.  100,  4  L.  Ed.  523. 

For  further  cases,  see  footnotes  2  Hallecli,  Int.  Law  (4th  Ed.)  381-388. 

1 1  7  Jloore,  255. 


:}66  TBRMINATIOX   OF   WAR.  (Ch.  21 

CHAPTER  XXI. 
TERMINATION   OF   WAR. 

161.  Methods  of  Termiuation. 

162.  Conquest. 

163.  Effect  of  Conquest. 

164.  Cessation  of  Hostilities. 

165.  Effect  of  Cessation  of  Hostilities. 

166.  Treaty  of  Peace. 

167.  Scope  of  a  Treaty  of  Peace. 

168.  Effect  of  a  Treaty  of  I'eace. 

169.  Proclamation. 

170.  Postliminium. 

171.  Amnesty. 

IMTETHODS    OF   TERMINATION. 

161.  'War  may  be  terminated: 

(a)  By  conquest. 

(b)  By  cessation  of  hostilities. 

(c)  By  a  treaty  of  peace. 

(d)  In  case  of  a  civil  -war,  by  proclamation. 

CONQUEST. 

162.  IVben  irar  is  terminated  by  conquest,  there  may  be  in~ 

volved   the   complete   submission   of   one   belligerent   to 
the  other. 

The  complete  submission  of  one  belligerent  to  the  other 
was  in  early  times  regarded  as  the  natural  consequence  of 
war.  The  Roman  idea  of  debellatio  involved  the  submission 
of  the  enemy.  Gradually  there  has  grown  up  a  distinction  be- 
tween conquest  and  military  occupation.  Military  occupation 
may  be  simply  an  incident  of  the  conduct  of  military  opera- 
tions, or  merely  an  attempt  to  put  pressure  upon  the  enemy 
for  the  purpose  of  hastening  the  end  of  the  war,  but  with  no 
purpose  of  obtaining  dominion  over  the  territory.  Halleck 
says;  "By  the  term  'conquest'  we  understand  the  forcible  ac- 


§  162)  CONQUEST.  367 

quisition  of  territory  admitted  to  belong  to  the  enemy.  It  ex- 
presses, not  a  right,  but  a  fact,  from  which  rights  are  derived. 
Until  the  fact  of  conquest  occurs,  there  can  be  no  rig-hts  of 
conquest."  ^ 

If  actual  possession  is  practically  undisputed  for  a  consid- 
erable time,  is  generally  recognized  by  other  states,  or  is  of 
such  a  nature  as  to  manifest  on  the  part  of  the  conqueror  an 
ability  to  hold  and  on  the  part  of  the  conquered  complete  sub- 
mission, it  is  enough. 

There  must  be  ability  and  evident  disposition  on  the  part  of 
the  conqueror  to  retain  his  conquest. 

The  actual  possession  for  a  considerable  time  is  not  conclu- 
sive evidence  of  conquest,  for  this  may  merely  constitute  mil- 
itary occupation.  The  possession  accompanied  by  a  disposi- 
tion to  submit  is  strong  evidence  of  valid  conquest.  If  the  con- 
quest is  generally  recognized  by  other  states,  there  is  presump- 
tion that  it  is  valid.  When,  however,  the  conqueror  receives 
the  unconditional  surrender  of  the  other  belligerent,  the  war 
is  at  an  end.  The  enemy  is  considered  conquered  when  he 
submits  to  the  will  of  his  opponent.  It  is  not  necessary  that 
he  should  have  no  further  resources  or  ability  to  continue  the 
contest.  It  is  of  importance  to  know  when  belligerent  rela- 
tions are  succeeded  by  peaceful  relations,  for  the  status  of  oth- 
er than  the  belligerent  parties  is  affected  in  many  ways.  In 
modern  times  it  has  not  been  common  to  allow  the  uncertainty 
as  to  the  termination  of  the  war  to  continue,  and  the  success- 
ful belligerent  is  usually  in  position  to  determine  when  the 
war  shall  be  declared  at  an  end,  or  shall  be  ended  by  agree- 
ment. 

Lawrence  briefly  says  of  conquest :  "This  is  the  retention  of 
territory  taken  from  an  enemy  in  war,  and  the  exercise  therein 
of  all  the  powers  of  sovereignty,  with  the  intention  of  continu- 
ing to  do  so  permanently,  which  intention  is  usually  set  forth 
in  a  proclamation  or  some  other  legal  document.  Good  ex- 
amples are  to  be  found  in  the  annexations  of  the  Transvaal 
and  the  Orange  Free  State  by  Great  Britain  in  1900.  Con- 
quest in  the  jural  sense  differs  from  cession  by  forced  gift,  in 
that  there  is  no  formal  international  transaction  which  marks 

1  2  Hal  leek,  Int.  Law  (4th  Ed.)  p.  491. 


368  TERMINATION  OF  WAR.  (Ch.  21 

the  exact  time  of  the  commencement  of  the  new  title,  and  from 
conquest  in  the  mihtary  sense,  in  that  it  involves  permanent 
rule  over  the  territory.  When  a  conquest  in  the  military  sense 
of  part  of  a  state's  territory  is  confirmed  by  treaty  of  peace, 
the  title  to  the  conquered  part  is  one  of  cession,  not  of  con- 
quest in  the  legal  sense."  ^ 

At  the  International  American  Conference  of  sixteen  Amer- 
ican states  in  1889-90,  a  resolution  was  adopted  on  April  18, 
1890,  with  only  one  abstention  as  follows : 

"Resolved,  by  the  International  American  Conference,  that 
it  earnestly  recommends  to  the  governments  therein  represent- 
ed the  adoption  of  the  following  declarations : 

"First.  That  the  principle  of  conquest  shall  not,  during  the 
continuance  of  the  treaty  of  arbitration,  be  recognized  as  ad- 
missible under  American  public  law. 

"Second.  That  all  cessions  Of  territory  made  during  the  con- 
tinuance of  the  treaty  of  arbitration  shall  be  void,  if  made  un- 
der threats  of  war  or  in  the  presence  of  an  armed  force. 

"Third.  Any  nation  from  which  such  cessions  shall  be  ex- 
acted may  demand  that  the  validity  of  the  cessions  so  made 
shall  be  submitted  to  arbitration. 

"Fourth.  Any  renunciation  of  the  right  to  arbitration,  made 
under  the  conditions  named  in  the  second  section,  shall  be  null 
and  void."  * 

THE    EFFECT    OF   CONQUEST. 

163.    The   efPects  of   conquest   are,   in  general: 

(a)  To  transfer  to  the  conqneror  the  rights  and  obligations 

that  belonged  to  the  conquered  territory. 

(b)  To  render  valid  acts  of  the  conqueror  froni  the  date  of 

military  occupation  of  the  territory. 

Grotius  says  that  "it  is  not  customary  to  take  landed  prop- 
erty, except  under  public  authority,  after  an  army  has  been 
brought  in  and  strongholds  have  been  established."  * 

The  continental  doctrine  has  been  that  possession  by  force 

2  Handbook  of  Public  International  Law  (Tth  Ed.)  p.  53. 

3  2  Reports  of  Committees  and  Discussions  Thereon,  Int.  American 
Conference,  p.  1147. 

*  Grotius,  De  Jure  Belli  ac  Pacis,  lib.  Ill,  11. 


§  163)  THK    EFFECT   OF   CONQUEST.  369 

was  simply  a  fact,  which  would  be  confirmed  as  a  right  only 
by  a  tacit  or  explicit  abandonment  by  the  former  sovereign, 
or  by  the  complete  subjugation  of  that  sovereign. 

Great  Britain  has  regarded  an  enemy  territory  which  is  ef- 
fectively occupied  as  ipso  facto  British  territory.  The  United 
States  has  followed  the  British  doctrine.  In  IMagoon's  Re- 
ports in  1902  it  is  said :  "When  Spain  elected  to  go  to  war 
rather  than  withdraw  from  Cuba,  she  subjected  the  sovereign- 
ty and  dominion  of  her  entire  realm  to  the  hazard  of  that  war, 
and  by  the  laws  of  war  and  of  nations  she  made  it  lawful  for 
her  adversary  to  invade  any  part  of  her  domain  and  displace 
her  sovereignty,  exclude  her  jurisdiction,  and  destroy  her 
dominion;  in  others  words,  effect  a  complete  conquest.  So 
much  of  her  domain  as  became  so  situated  was  without  the 
jurisdiction  of  Spain  and  within  the  possession  of  the  United 
States.  As  to  the  United  States,  such  territory  was  the  same 
as  land  newly  discovered  and  occupied  by  citizens  of  the  Unit- 
ed States,  with  this  difference :  The  occupier  was  a  military 
force  of  the  United  States  sent  there  by  the  nation  itself,  in- 
stead of  a  private  citizen  and  pioneer  adventurer."  ^ 

If  the  whole  state  is  completely  conquered,  there  is  no  au- 
thority with  which  to  make  any  treaty,  and  the  rights  and  ob- 
ligations belonging  to  the  territory  pass  to  the  conqueror.  The 
conquering  state  would  not  necessarily  obtain  the  rights  be- 
longing to  the  sovereign  of  the  conquered  in  his  relations  to 
other  states,  nor  assume  his  obligations ;  e.  g.,  rights  and  du- 
ties based  on  alliances.  The  rights  and  duties  based  on  inter- 
nal sovereignty  would  in  general  pass  to  the  conqueror.  The 
conqueror  would  be  under  no  obligation  to  give  to  the  inhabit- 
ants of  the  conquered  territory  rights  which  were  not  ex- 
tended to  his  own  citizens,  and  he  might  even  restrict  the 
rights  of,  and  impose  additional  burdens  upon,  the  inhabitants 
of  the  conquered  territory.  "Their  condition  should  remain  as 
eligible  as  is  compatible  with  the  objects  of  the  conquest."  " 

5  Magoon,  The  Law  of  Civil  Government  under  Military  Occupa- 
tion, p.  51. 

6  "Conquest  gives  a  title,  which  the  courts  of  the  conqueror  can- 
not deny,  whatever  may  be  the  speculative  opinions  of  individuals 
respecting  the  original  justice  of  the  claim,  which  has  been  success- 

WlLS.lNT.L,.— 24 


370  TKHMINATIOX   OF   WAR.  (Cll.  21 

If  a  portion  of  a  state  is  acquired  by  conquest,  the  basis  of 
acquisition  is  usually  fixed  by  treaty;  if  not  thus  determined, 
the  public  property  and  general  rights  of  territorial  jurisdic- 
tion pass  to  the  conqueror.  The  nonpolitical  rights  of  the  in- 
habitants remain,  unless  changed  by  the  conqueror/  In  the 
case  of  Count  Platen  Hallcmund,  who  was  tried  by  the  courts 
of  Prussia  in  1866  for  treason,  the  opinion  was  given  that  the 
mere  forcible  conquest  of  a  country  did  not,  of  itself,  create 
the  relation  of  sovereign  and  subject  between  the  conqueror 
and  the  conquered ;  that  in  order  to  create  such  a  relation 
there  must  be  an  express  or  tacit  submission  to  the  new  gov- 
ernment.* This  might  be  by  formal  action  or  by  simple  reten- 
tion of  domicile  in  the  conquered  territory. 

The  jurisdiction  of  a  state  is  suspended  in  the  territory  oc- 
cupied by  an  enemy.  Acts  done  during  the  period  of  military 
occupancy  rest  for  their  authority  upon  the  occupant.  In  case 
the  occupancy  is  converted  into  complete  dominion  through 
conquest,  the  authority  of  the  conquered  state  is  regarded  as 
as  at  an  end  from  the  date  of  effective  occupancy  by  the  con- 


fully  asserted.  But,  although  this  title  is  acquired  and  maintained 
by  force,  humanity,  acting  on  public  opinion,  has  prescribed  rules 
and  limits  by  which  it  may  be  governed.  Thus  it  is  a  rule  that  the 
captured  shall  not  be  wantonly  oppressed,  and  that  their  condition 
shall  remain  as  eligible  as  is  compatible  with  the  objects  of  the 
conquest.  Most  usually  they  are  incorporated  with  the  victorious  na- 
tion, and  become  subjects  or  citizens  of  the  government  with  which 
they  are  connected.  The  new  and  old  members  of  the  society  mingle 
with  each  other,  the  distinction  between  them  is  gradually  lost,  and 
they  become  one  people.  Where  this  incorporation  is  practicable,  hu- 
manity demands,  and  a  wise  policy  requires,  that  the  rights  of  the 
conquered  to  property  should  remain  unimpaired,  that  the  new  sub- 
jects should  be  governed  as  equitably  as  the  old,  and  that  confidence 
in  their  security  should  gradually  banish  the  painful  sense  of  their 
being  separated  from  .their  ancient  connections  and  united  by  force 
to  strangers.  When  the  conquest  is  complete,  and  the  conquered  in- 
habitants can  be  blended  with  the  conquerors,  or  safely  governed 
as  a  distinct  people,  public  opinion,  which  not  even  the  conqueror 
can  disregard,  imposes  those  restraints  upon  him,  and  he  cannot 
neglect  them  without  injury  to  his  name  and  hazard  of  his  power." 
Johnson  v.  Mcintosh,  8  Wheat.  543,  5  L.  Ed.  G81. 

7  United  States  v.  Moreno.  1  Wall.  400,  17  L.  Ed.  633. 

8  1  Halleck,  Int.  Law  (4th  Ed.)  510. 


§  163)  THE    EFFECT    OF   CONQUEST.  371 

queror,  and  acts  subsequent  to  that  time  derive  validity  from 
his  sanction.  In  1833,  in  the  case  of  United  States  v.  Pcrche- 
man,  Mr.  Chief  Justice  Marshall  said: 

"It  may  not  be  unworthy  of  remark  that  it  is  very  unusual, 
even  in  cases  of  conquest,  for  the  conqueror  to  do  more  than 
to  displace  the  sovereign  and  assume  dominion  over  the  coun- 
try. The  modern  usage  of  nations,  which  has  become  law, 
would  be  violated,  that  sense  of  justice  and  of  right  which  is 
acknowledged  and  felt  by  the  whole  civilized  world  would  be 
outraged,  if  private  property  should  be  generally  confiscated, 
and  private  rights  annulled.  The  people  change  their  alle- 
giance ;  their  relation  to  their  ancient  sovereign  is  dissolved ; 
but  their  relations  to  each  other,  and  their  rights  of  property, 
remain  undisturbed."  ^ 

Later  the  United  States  court  said  in  regard  to  the  effect  of 
conquest  on  property  rights : 

"By  the  law  of  nations,  the  inhabitants,  citizens,  or  subjects 
of  a  conquered  or  ceded  country,  territory,  or  province  retain 
all  the  rights  of  property  which  have  not  been  taken  from 
them  by  the  orders  of  the  conqueror,  or  the  laws  of  the  sov- 
ereign who  acquired  it  by  cession,  and  remain  under  their 
former  laws  until  they  shall  be  changed."  ^° 

In  the  case  of  United  States  et  al.  v.  Huckabee  the  Supreme 
Court  set  forth  quite  fully  the  attitude  of  the  United  States : 

"All  captures  in  war  vest  primarily  in  the  sovereign ;  but 
in  respect  to  real  property  Chancellor  Kent  says  the  acquisi- 
tion by  the  conqueror  is  not  fully  consummated  until  confirm- 
ed by  a  treaty  of  peace  or  by  the  entire  submission  or  destruc- 
tion of  the  state  to  which  it  belonged,  which  latter  rule  con- 
trols the  question  in  the  case  before  the  court,  as,  the  confed- 
eration having  been  utterly  destroyed,  no  treaty  of  peace  was 
or  could  be  made,  as  a  treaty  requires  at  least  two  contracting 
parties.  Power  to  acquire  territory,  either  by  conquest  or 
treaty,  is  vested  by  the  Constitution  in  the  United  States. 
Conquered  territory,  however,  is  usually  held  as  a  mere  mil- 
itary occupation  until  the  fate  of  the  nation  from  which  it  is 
conquered  is  determined ;  but  if  the  nation  is  entirely  subdued, 

9  7  Pet.  51,  8  L.  Ed.  604. 

10  Mitchell  V.  United  States,  9  Pet.  715,  9  L.  Ed.  283. 


372  TERMINATION   OF   WAR.  (Ch.  21 

or  ill  case  it  be  destroyed  and  ceases  to  exist,  the  right  of  oc- 
cupation becomes  permanent  and  the  title  vests  absolutely  in 
the  conqueror.  Complete  conquest,  by  whatever  mode  it  may 
be  perfected,  carries  with  it  all  the  rights  of  the  former  gov- 
ernment ;  or,  in  other  words,  the  conqueror,  by  the  completion 
of  his  conquest,  becomes  the  absolute  owner  of  the  property 
conquered  from  the  enemy  nation  or  state.  His  rights  are  no 
longer  limited  to  mere  occupation  of  what  he  has  taken  into 
his  actual  possession,  but  they  extend  to  all  the  property  and 
rights  of  the  conquered  state,  including  even  debts  as  well  as 
personal  and  real  property."  ^^ 

Hall  summarizes  the  effects  of  conquest  by  saying: 

"The  effects  of  conquest  are : 

"1.  To  validate  acts  done  in  excess  of  the  rights  of  a  mil- 
itary occupant  between  the  time  that  the  intention  to  conquer 
has  been  signified  and  that  at  which  conquest  is  proved  to  be 
completed. 

"2.  To  confer  upon  the  conquering  state  property  in  the 
conquered  territory,  and  to  invest  it  with  the  rights  and  affect 
it  with  the  obligations  which  have  been  mentioned  as  accom- 
panying a  territory  upon  its  absorption  into  a  foreign  state. 

"3.  To  invest  the  conquering  state  with  sovereignty  over  all 
subjects  of  a  wholly  conquered  state,  and  over  such  subjects 
of  a  partially  conquered  state  as  are  identified  with  the  con- 
quered territory  at  the  time  when  the  conquest  is  definitively 
effected,  so  that  they  become  subjects  of  the  state  and  are 
naturalized  for  external  purposes,  without  necessarily  acquir- 
ing the  full  status  of  subject  or  citizen  for  internal  purposes. 
The  persons  who  are  so  identified  with  conquered  territory 
that  their  nationality  is  changed  by  the  fact  of  conquest  are, 
of  course,  mainly  those  who  are  native  of  and  established  upon 
it  at  the  moment  of  conquest.  To  these  must  be  added  per- 
sons native  of  another  part  of  the  dismembered  state,  who 
are  established  on  the  conquered  territory  and  continue  their 
residence  there.  Correlatively  persons  native  of  the  conquered 
territory,  but  established  in  another  part  of  the  state  to  which 
it  formerly  belonged,  ought  to  be  considered  to  be  subjects  of 
the  latter."  ^^ 

11  IG  Wall.  414,  21  L.  Ed.  457. 

12  Hall.  Int.  Law  (5th  Ed.)  p.  570. 


§  164)  CESSATION    OF  HOSTILITIES.  373 


CESSATION    OF   HOSTILITIES. 

164.    Certain  xcrars  have  come  to   an  end  by  the  simple   cessa- 
tion of  hostilities. 

When  war  comes  to  an  end  by  a  simple  cessation  of  hostili- 
ties, not  only  the  subjects  of  the  belligerent  states,  but  also 
those  of  neutral  states,  are  in  doubt  as  to  the  extent  of  their 
rights  and  their  status.  Instances  of  this  mode  of  terminating 
a  war  occurred  in  1716,  when  Sweden  and  Poland  were  en- 
gaged in  war,  and  simply  ceased  hostilities ;  in  1720,  when 
France  and  Spain  ceased  hostilities;  and  in  1801,  in  the  war 
of  Russia  against  Persia.  The  wars  waged  by  Spain  with  her 
South  American  colonies,  ceased  in  1826  some  time  before 
the  independence  of  the  different  states  was  acknowledged. 
The  independence  of  Venezuela  was  not  fully  recognized  by 
Spain  till  twenty-five  years  after  the  cessation  of  active  hos- 
tilities. 

The  uncertainties  resulting  from  such  methods  of  terminat- 
ing war  have  led  in  recent  times  to  the  general  practice  of 
making  known  by  announcement  the  return  of  peace,  even  in 
cases  of  civil  war.  Such  proclamations  were  made  at  the  close 
of  the  Civil  War  in  the  United  States  in  1865  from  time  to 
time  as  hostilities  ceased  in  different  areas.^^  In  the  case  of 
The  Protector  the  United  States  Supreme  Court  said  in  1871 
in  regard  to  the  duration  of  the  American  Civil  War : 

"Acts  of  hostility  by  the  insurgents  occurred  at  periods  so 
various,  and  of  such  different  degrees  of  importance,  and  in 
parts  of  the  country  so  remote  from  each  other,  both  at  the 
commencement  and  the  close  of  the  late  Civil  War,  that  it 
would  be  difficult,  if  not  impossible,  to  say  on  what  precise 
day  it  began  or  terminated.  It  is  necessary,  therefore,  to  refer 
to  some  public  act  of  the  political  departments  of  the  govern- 
ment to  fix  the  dates ;  and,  for  obvious  reasons,  those  of  the 
executive  department,  which  may  be,  and  in  fact  was,  at  the 
commencement  of  hostilities,  obliged  to  act  during  the  recess 
of  Congress,  must  be  taken. 

"The  proclamation  of  intended  blockade  by  the  President 
may,  therefore,  be  assumed  as  marking  the  first  of  these  dates, 

13  6  Messages  and  Papers  of  the  Presidents,  p.  308  ff. 


374  TERMINATION   OF    WAR.  (Ch.  21 

and  the  proclamation  that  the  war  had  closed  as  marking  the 
second.  But  the  war  did  not  begin  or  close  at  the  same  time 
in  all  the  states.  There  were  two  proclamations  of  intended 
blockade— the  first,  of  the  19th  of  April,  1861  (13  Stat.  1258), 
embracing-  the  states  of  South  Carolina,  Georgia,  Alabama, 
Florida,  Mississippi,  Louisiana,  and  Texas ;  the  second,  of  the 
27th  of  April,  1861  (12  Stat.  1259),  embracing  the  states  of 
Virginia  and  North  Carolina;  and  there  were  two  proclama- 
tions declaring  that  the  war  had  closed — one  issued  on  the  2d 
of  April,  1866  (14  Stat.  811),  embracing  the  states  of  Vir- 
ginia, North  Carolina,  South  Carolina,  Georgia,  Florida,  Mis- 
sissippi, Tennessee,  Alabama,  Louisiana,  and  Arkansas ;  and 
the  other,  issued  on  the  20th  of  August,  1866  (14  Stat.  814), 
embracing  the  state  of  Texas. 

"In  the  absence  of  more  certain  criteria,  of  equally  general 
application,  we  must  take  the  dates  of  these  proclamations  as 
ascertaining  the  commencement  and  the  close  of  the  war  in 
the  states  mentioned  in  them."  ^* 


EFFECT    OF    CESSATION    OF   HOSTILITIES. 

165.  Tlie  e&ect  of  the  tenuination  of  war  by  the  cessation  of 
hostilities  is  usually  to  introduce  the  principle  of  nti 
possidetis. 

While  it  may  be  difficult  to  determine  at  what  period  hostili- 
ties actually  cease,  yet,  if  that  period  is  determined,  it  is  cus- 
tomary to  regard  conditions  prevailing  at  that  time  as  the 
normal  conditions,  and  to  regard  the  territory  and  property 
held  by  either  belligerent  at  the  time  of  cessation  as  vested  in 
the  holder,  uti  possidetis. 

"Unless  the  parties  stipulate  otherwise,  the  effect  of  a  treaty 
of  peace  is  that  everything  remains  in  such  condition  as  it  was 
at  the  time  peace  was  concluded.  Thus,  all  movable  state 
property,  as  munitions,  provisions,  arms,  money,  horses,  means 
of  transport,  and  the  like,  seized  by  an  invading  belligerent, 
remain  his  property,  as  likewise  do  the  fruits  of  immovable 
property  seized  by  him.  Thus,  further,  if  nothing  is  stipulat- 
ed regarding  conquered  territory,  it  remains  in  the  hands  of 

14  The  Protector,  12  Wall.  700,  20  L.  Ed.  463. 


§  166)  TREATY    OF    PEACE.  375 

the  possessor,  who  can  annex  it.  But  it  is  nowadays  usual, 
although  not  at  all  legally  necessar}-,  for  the  conqueror,  de- 
sirous of  retaining  conquered  territory,  to  stipulate  cession  of 
such  territory  in  the  treaty  of  peace."  ^^ 

TREATY    OF    PEACE. 

1G6.   In  modern  times,  ^xra.v  most  frequently  comes  to  an  end 
by   a  treaty  of  peace. 

Treaties  of  peace  are  now  usually  preceded  by  preliminary 
agreements- embodying  the  bases  for  treaty  negotiations.  This 
agreement  usually  provides  for  the  suspension  of  hostilities 
during  negotiations,  in  order  that  the  bases  agreed  upon  may 
not  be  changed  from  day  to  day  by  the  issue  of  the  war.  In  the 
Spanish-American  War  of  1898  the  protocol  of  August  12, 
1898,  containing  the  agreement  to  appoint  commissioners  to 
treat  of  peace  upon  certain  conditions,  also  contained  an  agree- 
ment to  suspend  hostilities  from  that  date.  Proclamations 
suspending  hostilities  were  immediately  issued.^®  The  treaty 
of  peace  was  not  concluded  till  December  10,  1898.  In  the 
Russo-Japanese  War  negotiations  looking  toward  peace  were 
begun  at  Portsmouth,  N.  H.,  August  9,  1905.  The  envoys 
came  to  terms  on  August  29th,  and  a  protocol  suspending  hos- 
tilities was  issued  September  Ist.^''  The  treaty  of  peace  was 
signed  on  September  5th. 

The  preliminary  agreements  preparatory  to  a  treaty  of  peace 
are  frequently  made  through  the  friendly  offices  of  a  third 
power.  The  ambassador  of  France  acted  for  Spain  in  1898 ; 
the  President  of  the  United  States  was  instrumental  in  bring- 
ing the  representatives  of  Russia  and  Japan  together  in  1905. 
According  to  article  3  of  the  Hague  Convention  of  1907  on 
the  Pacific  Settlement  of  International  Disputes : 

"Powers  strangers  to  the  dispute  have  the  right  to  ofifer 
good  offices  or  mediation  even  during  the  course  of  hostilities. 

"The  exercise  of  this  right  can  never  be  regarded  by  either 
of  the  parties  in  dispute  as  an  unfriendly  act." 

15  2  Oppenheim,  Int.  Law,  §  273. 

16  Foreign  Relations  U.  S.,  1898,  828. 

17  Takahasbi,  Int.  Law  dnring  Russo-Japanese  War,  219. 


376  TEHMINATION   OF   WAR.  (Cb.  21 


SCOPE    OF    A    TREATY    OF    PEACE. 

167.    A   treaty  of  peace— 

(a)  In  general,  puts  an  end  to  hostile  relations  bet^reen  the 

belligerents. 

(b)  Usually   provides   for    the    settlement    of    the   differences 

leading  to  'war. 

(c)  Usually  specifies  the  conditions  of  release  of  prisoners  of 

•war. 

(d)  Usually   provides    for  claims   of  or   against  nationals    of 

either  party  arising  during   or  in   consequence   of  the 
■war. 

(e)  May  reviemr  or  confirm  former  treaties,  provide  for  ces- 

sion of  territory,  establishment  of  new  boundaries,  etc. 

(a)  Treaties  at  the  close  of  a  war  are  often  extended  to 
cover  many  other  matters  than  those  which  would  be  included 
in  a  treaty  of  peace  in  the  strict  sense.  A  treaty  of  peace  is 
primarily  a  treaty  to  put  an  end  to  the  hostile  relations  of  the 
belligerents.  Treaties  of  peace  and  amity  often  mark  the  con- 
clusion of  a  war  and  cover  many  topics  not  involved  in  the 
simple  conclusion  of  war,  as  the  treaty  of  peace  and  amity  be- 
tween the  United  States  and  Great  Britain  in  1814  included 
an  article  upon  the  abolition  of  the  slave  trade. 

(b)  Treaties  of  peace  usually  provide  for  the  settlement  of 
the  difficulties  which  have  led  to  the  war.^*  The  treaty  of 
1814  between  the  United  States  and  Great  Britain  did  not, 
however,  mention  these  difficulties. 

(c)  By  the  sixth  article  of  the  Spanish-American  treaty  of 
December  10,  1898,  the  United  States  and  Spain  reciprocally 
agree  to  return  at  state  expense  prisoners  to  their  home  coun- 
tries. Russia  and  Japan  mutually  agreed  in  1905  to  turn  over 
prisoners  into  the  hands  of  commissioners  duly  appointed  by 
each  state. 

(d)  The  provision  of  treaties  of  peace  in  regard  to  claims 
is  illustrated  in  the  Spanish-American  Treaty  of  December  10, 
1898: 

18  The  second  article  of  the  Russo-Japanese  Treaty  of  September 
5,  1905,  acknowledges  Japan's  position  in  the  Far  East.    Id.  p.  774. 

By  the  first  article  of  the  Spanish-American  Ti-eaty  of  December 
10,  1898,  Spain  relinquishes  all  claim  to  the  sovereignty  of  Cuba. 
30  Stat.  1755. 


§  168)        EFFECT  OF  A  TREATY  OF  PEACE.  377 

"Article  VII.  The  United  States  and  Spain  mutually  re- 
linquish all  claims  for  indemnity,  national  and  individual,  of 
every  kind,  of  either  government,  or  of  its  citizens  or  subjects, 
against  the  other  government,  that  may  have  arisen  since  the 
beginning  of  the  late  insurrection  in  Cuba  and  prior  to  the 
exchange  of  ratifications  of  the  present  treaty,  including  all 
claims  for  indemnity  for  the  cost  of  the  war. 

"The  United  States  will  adjudicate  and  settle  the  claims  of 
its  citizens  against  Spain  relinquished  in  this  article." 

(e)  European  treaties  of  peace  since  the  seventeenth  century 
contain  many  instances  of  the  renewal  or  confirmation  of  for- 
mer treaties.  The  Treaty  of  Utrecht,  1714,  has  often  been 
confirmed.  Sometimes  a  clause  makes  a  general  renewal  of 
all  treaties  existing  between  the  states  at  the  outbreak  of  the 
war.  Other  matters  are  included  as  the  conditions  may  make 
expedient,  as  the  Spanish-American  Treaty  of  December  10, 
1898,  contained  an  article  providing  that  for  the  cession  of  the 
Philippine  Islands : 

"The  United  States  Avill  pay  to  Spain  the  sum  of  twenty  mil- 
lion dollars  ($20,000,000)  within  three  months  after  the  ex- 
change of  the  ratifications  of  the  present  treaty." 

EFFECT    OF   A   TREATY    OF   PEACE. 

168.  "While  the  final  effects  of  a  treaty  of  peace  may  be  de- 
termined by  the  scope  of  its  provisions,  the  immediate 
effects  are  to  put  an  end  to  hostile  relations  betTtreen  the 
belligerents  and  to  put  an  end  to  the  status  of  neutral- 
ity on  the  part  of  other  states. 

Sometimes  a  treaty  provides  for  the  restoration  of  the  sta- 
tus quo  ante  bellum ;  sometimes  it  follows  the  doctrine  of  uti 
possidetis ;  sometimes  it  establishes  one  doctrine  in  certain 
cases  and  the  other  in  other  cases.  In  absence  of  provisions  in 
the  treaty  of  peace,  the  doctrine  of  uti  possidetis  is  usually  fol- 
lowed, and  each  belligerent  retains  what  he  has  in  his  posses- 
sion. In  case  the  principle  of  restoration  of  the  status  quo 
ante  bellum  is  adopted,  lawful  prize  and  booty  would  not  or- 
dinarily be  restored.  This  principle  was  largely  followed  in 
the  treaty  of  peace  between  the  United  States  and  Great  Bri- 
tain in  1814. 


378  TERMINATION   OF  WAR.  (Ch.  21 

Some  treaties  may  revive  ipso  facto  on  the  conclusion  of  a 
treaty  of  peace.  Certain  private  rights  which  have  been  sus- 
pended during  the  war  revive.  War  does  not  necessarily  ter- 
minate contracts,  but  suspends  the  judicial  enforcement  of 
some  contracts.^*  Some  contracts  are  generally  dissolved,  as 
partnership,  and  do  not  revive  by  a  treaty  of  peace.  The  gen- 
eral principle  was  stated  in  1823  by  the  United  States  Supreme 
Court  as  follows : 

"We  think,  therefore,  that  treaties  stipulating  for  perma- 
nent rights  and  general  arrangements,  and  professing  to  aim 
at  perpetuity,  and  to  deal  with  the  case  of  war  as  well  as  of 
peace,  do  not  cease  on  the  occurrence  of  war,  but  are,  at  most, 
only  suspended  while  it  lasts ;  and  unless  they  are  waived  by 
the  parties,  or  new  and  repugnant  stipulations  are  made,  they 
revive  in  their  operation  at  the  return  of  peace."  ^° 

In  general  a  treaty  determines  transfer  of  sovereignty. 
From  the  treaty  of  peace  between  the  United  States  and  Spain 
after  the  Spanish-American  War  in  1898,  it  is  evident  that 
the  United  States  did  not  consider  that  it  had  by  the  simple 
fact  of  effective  military  occupation  obtained  the  sovereignty 
over  or  gained  title  to  Spanish  territory.  Article  II  of  that 
treaty  states  that  "Spain  cedes  to  the  United  States  the  island 
of  Porto  Rico  and  other  islands  now  under  Spanish  sov- 
ereignty in  the  West  Indies,  and  the  island  of  Guam  in  the 
^Marianas  or  Ladrones,"  though  the  forces  of  the  United  States 
were  at  the  time  occupying  Porto  Rico. 

It  is  evident  that  the  United  States  and  Spain,  after  the  war 
of  1898,  considered  it  necessary  to  agree  to  abrogate  and 
annul  the  treaties  existing  prior  to  the  war.  Provision  to 
this  effect  is  made  in  article  XXIX  of  the  Treaty  of  Friend- 
ship and  General  Relations  of  July  3,  1902,  as  follows : 

"All  treaties,  agreements,  conventions  and  contracts  between 
the  United  States  and  Spain  prior  to  the  Treaty  of  Paris  shall 
be  expressly  abrogated  and  annulled,  with  the  exception  of  the 
treaty  signed  the  seventeenth  of  February,  1834,  between  the 
two  countries,  for  the  settlement  of  claims  between  the  United 

19  Semmes  v.  City  Fire  Ins.  Co.  13  Wall.  158,  20  L.  Ed.  490. 

20  Society  for  Propagation  of  tlie  Gospel  v.  New  Haven,  8  Wheat. 
464,  5  L.  Ed.  662. 


§  170  POSTLIMINIUM.  379 

States  of  America  and  the  government  of  His  Catholic  Maj- 
esty, which  is  continued  in  force  by  the  present  convention." 

As  neutrality  can  exist  only  during  war,  the  restoration  of 
peace  puts  an  end  to  that  relationship.  The  rights  and  obliga- 
tions of  neutrality  are  at  an  end. 


PROCLAMATION. 

169.    The  termination  of  a  civil  -war  is  usually  by  some  act  of 
the  political  department. 

The  surrender  of  the  main  armies  of  the  party  opposing  the 
established  state  does  not  necessarily  terminate  a  civil  war,  for 
hostilities  may  be  renewed  in  other  regions  and  by  other 
groups.  There  is  usually  no  responsible  authority  which  can 
control  those  who  may  engage  in  military  uprisings  in  differ- 
ent sections.  There  is  also  no  political  authority  in  the  in- 
surgent party  competent  to  make  a  binding  treaty.  When, 
however,  the  political  department  of  an  established  state  is 
satisfied  that  the  war  is  at  an  end,  and  issues  a  proclamation 
to  that  effect,  this  action  is  binding  upon  the  courts,  and  is 
sufficient  evidence  of  the  termination  of  hostilities.  War  may 
close  at  different  times  in  different  regions  by  proclamations  to 
that  effect,  as  in  the  case  of  the  American  Civil  War.^^ 


POSTLIMINIUM. 

170.  The  term  "postliminium"  is  used  to  indicate  the  return 
to  the  original  soverignty  of  that  ivhich  has  been  for  a 
time  under  control  of  an  enemy. 

The  term  "postliminium,"  derived  from  the  Roman  law 
idea  that  a  person,  who  had  been  captured  and  taken  beyond 
(post)  the  boundary  (limen),  on- return  recovered  his  former 
status,  served  a  convenient  purpose.  By  an  analogy  it  was 
applied  to  the  return  to  former  status  when  a  territory  which 

21  The  Protector,  12  Wall.  700,  20  L.  Ed.  463;  Brown  v.  Hiatt,  15 
Wall.  177,  21  L.  Ed.  128;  Adger  v.  Alston,  15  Wall.  555,  21  L.  Ed. 
234;  Batesville  Institute  v.  Kauffraan,  18  Wall.  15J,  21  L.  Ed.  775. 


380  TERMINATION   OF   WAR.  (Ch.  21 

had  been  occupied  by  an  enemy  came  again  under  the  former 
sovereignty.  The  doctrine  was  applied  in  various  directions 
in  municipal  law. 

In  international  law  it  was  considered  as  applicable  to  ter- 
ritory which  had  for  a  time  been  in  the  power  of  the  enemy  as 
well  as  to  persons.  It  is  now  held  that  sovereignty  does  not 
pass  to  the  military  occu[)ant,  but  that  its  exercise  is  for  the 
time  suspended.  Acts  of  the  occupant  which  are  legitimate 
under  the  rules  of  international  law  of  war  are  valid  when  the 
occupancy  is  at  an  end.  The  occupant  may  carry  on  the  ordi- 
nary administrative  functions,  and  his  acts  are  as  valid  as 
those  of  the  sovereign.  The  occupant  has  right  to  the  use  of 
the  ordinary  revenue  under  the  law.  Receipts  which  the  occu- 
pant gives  for  services  rendered  or  taxes  paid  are  valid. 

If  the  occupant  has  performed  acts  which  are  not  legal  under 
the  law  of  military  occupation,  these  acts  are  invalid.  If  he 
has  sold  the  public  domain,  he  has  gone  beyond  his  legitimate 
authority,  and  the  title  will  not  hold  against  the  state  when  it 
is  restored  to  power.  The  occupant  would  have  a  right  to  the 
income  from  the  public  domain  during  his  occupancy.  If 
private  property  is  seized  and  sold,  the  title  is  not  valid,  when 
the  occupant  is  driven  out,  retires,  or  when  peace  is  restored, 
because  the  confiscation  of  private  property  is  forbidden  un- 
der the  laws  of  war.  Such  property  reverts  to  the  original 
owners,  when  the  authority  of  the  legitimate  sovereign  is  re- 
stored, and  the  purchaser  has  no  redress. 

The  analogy  to  the  old  idea  of  postliminium  is  by  some 
writers  not  considered  sufficiently  close  to  warrant  the  use  of 
the  word,  and  they  maintain  that  it  obscures  the  meaning  of 
rules  which  are  in  themselves  simple  and  based  on  the  fact 
that  military  occupation  suspends  the  operation  of  sovereignty, 
but  does  not  establish  a  new  sovereignty,  which  may  act  with- 
out regard  to  previously  existing  rights,  or  in  disregard  of 
the  laws  of  war.-^ 

22Bonfils,  Droit  Int  No.  1710;  3  Nys,  Droit  int.  738;  Ullmann, 
Volkerrecht,  §  169. 


171)  V  AMNESTY.  381 


AMNESTY. 

171.  Clauses  are  frequently  included  in  treaties  of  peace  by 
^vhich.  immunity  is  granted  for  offenses  in  nature  of 
the  violation  of  the  rules  of  war. 

Amnesty  is  a  kind  of  act  of  oblivion.  Even  if  such  a  clause 
is  not  included  in  the  treaty,  it  is  generally  understood  that 
acts  in  the  line  of  hostilities  will  not  be  penalized.  Amnesty 
does  not  give  immunity  for  ordinary  crimes  which  have  no 
direct  connection  with  the  war;  i.  e.,  foraging  might  be  al- 
lowed in  time  of  war  for  war  purposes,  but  similar  action 
might  be  liable  to  penalty  if  not  for  war  purposes.  Unless 
specially  incorporated  in  the  treaty,  treason  against  the  state 
would  not  be  included  in  a  general  amnesty.  Amnesty  does 
not  give  any  relief  from  penalty  already  suffered,  whether  in 
person  or  property.-^ 

During  and  after  the  Civil  War  in  the  United  States,  sev- 
eral proclamations  of  amnesty  were  issued.  The  earlier  proc- 
lamations did  not  confer  amnesty  upon  all,  but  made  excep- 
tion of  certain  classes.  The  proclamation  of  December  25, 
1868,  was  general  in  its  nature ;  President  Johnson  saying  that 
"I,  by  virtue  of  the  power  vested  in  me  by  the  Constitution, 
and  in  the  name  of  the  sovereign  people  of  the  United  States, 
do  hereby  proclaim  and  declare,  unconditionally  and  without 
reservation,  to  all  and  to  every  person  who,  directly  or  indi- 
rectly, participated  in  the  late  insurrection  or  rebellion  a  full 
pardon  and  amnesty  for  the  offense  of  treason  against  the 
United  States  or  of  adhering  to  their  enemies  during  the  late 
Civil  War,  with  restoration  of  all  rights,  privileges,  and  im- 
munities under  the  Constitution  and  the  laws  which  have  been 
made  in  pursuance  thereof."  ^* 

2  3  United  States  v.  Dunnington,  146  U.  S.  338,  13  Sup.  Ct  79,  36 
L.  Ed.  996. 

24  6  Messages  and  Papers  of  the  Presidents,  p.  708. 


Part  VI 
RELATIONS  OF  NEUTRALS 


WrLS.lNT.L.  (383)« 


§  172)  NATURE  OF  NEUTRALITY.  385 

CHAPTER  XXII. 

NATURE    OF  NEUTRALITY. 

172.  Neutrality     Defiued. 

173.  Development. 

174.  Neutralization. 

175.  Declaration. 

176.  Divisions. 

NEUTRALITY   DEFINED. 

172.  Nentrality  is,  in  general,  abstention  by  a  state  Trbicb  is 
not  party  to  a  w^ar  from  all  participation  in  the  ^srar, 
and  may  extend  to  tlie  obligation  to  prevent,  tolerate, 
or  regulate  certain  acts  upon  tbe  part  of  the  bellig- 
erents. 

Impartiality  in  the  treatment  of  belligerents  is  not  neces- 
sarily neutrality  in  the  modern  sense,  for  it  would  be  possible 
for  a  state  to  grant  a  like  privilege  to  both  belligerents,  when 
this  privilege  might  be  of  no  service  to  one  belligerent  and  of 
greatest  service  to  the  other  as  in  the  use  of  ports.  Modern 
neutrality  proclamations,  which  sometimes  prescribe  that  both 
"impartiality  and  neutrality"  shall  be  observed  toward  the  bel- 
ligerents, define  the  "impartiality"  as  like  treatment  and  "neu- 
trality" as  nonparticipation  in  the  hostilities.  Recent  British 
proclamations  provide  for  the  observance  of  "a  strict  and  im- 
partial neutrality."  Other  proclamations  contain  similar  pro- 
visions. The  idea  of  the  elements  of  neutrality  in  the  modern 
sense  was  stated  in  the  proclamation  of  President  Washington 
of  December  3,  1793,  when  he  said :  "The  duty  and  interest 
of  the  United  States  require  that  they  should  with  sincerity 
and  good  faith  adopt  and  pursue  a  conduct  friendly  and  im- 
partial toward  the  belligerent  powers."  ^  Conduct  that  shall 
be  at  the  same  time  "friendly  and  impartial"  is  now  regarded 
as  obligatory  upon  a  neutral  state.     The  line  of  demarcation 

1  1  Richardson,  Messages  and  Papers  of  the  Presidents,  156. 

WiLS.lNT.L.— 25 


386  NATURE  OP  NEUTRALITY.  (Ch.  22 

in  neutral  duties  of  abstention,  prevention,  toleration,  and 
regulation  in  practice  often  becomes  indistinct,  and  accurate 
classification  may  not  always  be  possible. 

DEVELOPMENT. 

173.  In  early  times  neutrality  xf^aa  not  recognized.  The  idea 
is  largely  a  product  of  the  nineteenth  century.  The 
practice  in  regard  to  neutrality  necessarily  has  become 
more  defined  as  states  have  become  more  closely  re- 
lated. 

The  Development  of  the  Idea  of  Neutrality. 

The  Greek  and  Latin  languages  have  no  words  which  clearly 
express  the  meaning  of  the  words  "neutral"  and  "neutrality." 
The  Romans  made  use  of  the  words,  "amici,"  "medii."  "pa- 
cati,"  and  "socii"  to  convey  some  of  the  ideas  now  conveyed 
by  the  word  "neutrality."  Grotius  in  1G25  made  use  of  the 
expression,  "De  his  qui  in  bello  medii  sunt,"  as  a  title  for  his 
brief  chapter  upon  the  subject  of  their  rights,  in  which  he 
said:  "It  is  the  duty  of  those  who  stand  apart  from  a  war  to 
do  nothing  which  may  strengthen  the  side  whose  cause  is  un- 
just, or  which  may  hinder  the  movements  of  him  who  is  carry- 
ing on  a  just  war,  and,  in  a  doubtful  case,  to  act  alike  to  both 
sides,  in  permitting  transit,  in  supplying  provisions  to  the  re- 
spective armies,  and  in  not  assisting  persons  besieged."  ^ 

In  the  seventeenth  century  there  were  frequent  attempts  to 
establish  grades  of  neutrality  as  natural,  strict,  perfect,  im- 
perfect, qualified,  conditional,  conventional,  etc.^ 

Bynkershoek,  in  1737,  said :  "I  call  those  'non-enemies' 
who  are  of  neither  party  in  a  war.  If  I  am  neutral,  I  cannot 
advantage  one  party  lest  I  injure  the  other."  * 

Vattel  says  in  1758 :  "Neutral  nations,  during  a  war,  are 
those  who  take  no  one's  part,  remaining  friends  common  to 
both  parties,  and  not  favoring  the  armies  of  one  of  them  to 
the  prejudice  of  the  other."  ^  This  definition,  and  the  ex- 
planations  which  Vattel  gives  of  its  meaning,  shows  a  less 

2  Grotius,  De  Jure  Belli  ac  Pacis,  lib.  3,  C. 

8  Pufendorf,  Le  Droit  de  la  Nature  et  des  Gens,  liv.  VIII,  c.  VI. 
4  Qufsstiones  Juris  Publici,  I,  IX,  "qui  neutrarum  partium  sunt." 
-  Droit  des  Gens,  III,  103. 


§  173  DEVELOPMENT.  387 

clear  conception  of  the  idea  of  neutrality  than  that  set  forth 
by  Bynkershoek  more  than  twenty  years  earlier.  The  idea  of 
Vattel,  of  impartiality  rather  than  strict  neutrality,  generally 
prevailed  during  the  eighteenth  century.  Toward  the  end 
of  that  century  the  distinction  between  a  "strict  or  perfect 
neutrality"  and  an  "imperfect  neutrality"  began  to  be  made 
among  those  writing  upon  the  law  of  nations. 

\\"heaton  in  1S36  says :  "There  are  two  species  of  neutral- 
ity recognized  by  international  law.  These  are :  (1)  Natural 
or  perfect,  neutrality;  and  (2)  imperfect,  qualified,  or  conven- 
tional neutrality. 

"First.  Natural,  or  perfect,  neutrality  is  that  which  every 
sovereign  state  has  a  right,  independent  of  positive  compact, 
to  observe  in  respect  to  the  wars  in  which  other  states  may 
be  engaged.     *     *     * 

"Second.  Imperfect,  qualified,  or  conventional  neutrality  is 
that  which  is  modified  by  special  compact."  ® 

Kleen  in  1898  says  that,  when  neutral,  a  state  keeps  out  of 
the  hostilities  and  refrains  from  any  participation  or  interfer- 
ence in  the  contention,  while  maintaining  strict  impartiality.''' 

It  is,  however,  now  generally  recognized  that  neutrality  may 
in  practice  involve  more  than  refraining  from  participation  or 
interference,  and  the  maintenance  of  strict  impartiality.  Neu- 
trality places  certain  positive  obligations  upon  the  state.  The 
failure  to  perform  these  obligations  may  have  great  effect  up- 
on the  results  of  the  war.  By  the  Hague  Convention  Concern- 
ing Laws  and  Customs  of  War  on  Land  of  1899,  and  by  that 
of  1907  Respecting  the  Rights  and  Duties  of  Neutral  Powers, 
a  neutral  state  whith  receives  on  its  territory  troops  belonging 
to  the  belligerent  armies  is  under  obligation  to  intern  them  as 
far  as  possible  from  the  seat  of  war.  In  naval  war  a  neutral 
state  is  likewise  bound  to  exercise  such  care  as  the  means  at 
its  disposal  allow  to  prevent  violation  of  its  neutrality  by  bel- 
ligerents.    This  may  even  involve  the  use  of  force  by  the 

6  Elements  of  International  Law,  §§  413-415. 

7  "La  neutralite  est  la  situation  juridiqne  dans  laquelle  un  6tat 
pacifique  est,  autant  que  possible,  laisse  en  dehors  des  hostilites  qui 
ont  lieu  entre  des  etats  bellig6rants,  et  s'abstient  hii-mgme  de  toute 
participation  ou  ingerence  dans  leur  differend,  en  observant  vis-^-vis 
d'eux  une  stricte  impartial ite."    1  La  Neutralite,  p.  73. 


388  NATURE  OF  NEUTRALITY.  (Cll.  22 

neutral    against   a   belligerent   not    observing    the    recognized 
principles  of  international  law. 

Development  of  Practice  in  Regard  to  Neutral  Relations. 

As  war  in  early  times  was  usually  regarded  as  a  state  of 
afifairs  without  law,  there  was  in  practice  no  respect  for  those 
who  were  not  parties  to  the  war.  Rights  of  third  parties  could 
hardly  develop  till  the  rights  of  the  parties  to  the  war  were 
somewhat  defined.  Belligerents  were  gradually  compelled  in 
practice  to  respect  certain  rights  of  commerce.  Some  of  these 
rights  were  formulated  in  the  Consolato  del  Mare,  a  maritime 
code  of  uncertain  origin,  probably  of  the  thirteenth  century, 
which  provided  for  the  freedom  of  neutral  property  on  the  sea. 
The  rules  of  this  code  were,  however,  frequently  disregarded 
in  the  wars  before  the  end  of  the  eighteenth  century,  and  at 
this  period  there  was  great  diversity  in  practice.  There  also 
grew  up  a  difference  in  practice  in  regard  to  neutral  rights  and 
duties  on  land  and  on  the  sea.  Toward  the  end  of  the  eigh- 
teenth century  it  was  regarded  as  permissible  for  a  neutral  to 
allow  its  troops  to  serve  a  foreign  power  and  to  allow  its  ports 
to  be  used  for  war  purposes. 

By  the  Armed  Neutrality  of  1780  the  states  of  Northern 
Europe,  under  the  lead  of  Russia,  set  forth,  among  other  prin- 
ciples, that  free  ships  make  free  goods,  except  contraband  of 
war,  which  was  reaffirmed  by  the  Armed  Neutrality  of  1800. 
There  was  also  a  declaration  against  paper  blockades.  Free- 
dom of  commerce  began  to  he  provided  for  in  treaties  also. 
Article  23  of  the  treaty  between  the  United  States  and  France 
in  1778  provided  that  free  ships  should  make  free  goods.  The 
principle  was  incorporated  in  other  United  States  treaties  of 
the  period.®  The  question  received  much  attention  both  from 
American  and  foreign  publicists. 

In  U'.'o  the  disregard  of  belligerents  for  neutral  territory  re- 
ceived a  marked  illustration  in  the  conduct  of  M.  Genet,  the 

8  "If  one  of  the  contracting  parties  should  be  engaged  in  war  with 
any  other  power,  the  free  intercourse  and  commerce  of  the  subjects 
or  citizens  of  the  party  remaining  neuter  with  the  belligerent  powers 
shall  not  be  interrupted.  On  the  contrary,  in  that  case,  as  in  full 
peace,  the  vessels  of  the  neutral  party  may  navigate  freely  to  and 
from   the  ports  and  on    the  coasts  of  the  belligerent   parties,    free 


§  173)  DEVELOPMENT.  389 

French  minister  to  the  United  States.  He  issued  letters  of 
marque  to  American  merchantmen,  in  order  that  they  might 
cruise  against  British  ships.  He  also  proceeded  to  set  up 
prize  courts  in  connection  with  the  French  consulates.  The 
action  led  to  vigorous  protests  on  the  part  of  the  United 
States,^  and  later  to  the  so-called  neutrality  act  of  June  5, 
1794/°  which  was  subsequently  renewed,  and,  with  the  act  of 
April  20,  1818,  became  the  basis  of  the  neutrality  practice  of 
the  United  States.^ ^  This  act  was  summarized  in  President 
Roosevelt's  neutrality  proclamation  of  February  11,  1901,  in 
which  he  declares : 

"That  by  the  act  passed  on  the  20th  day  of  April,  A.  D. 
1818,  commonly  known  as  the  'neutrality  law,'  the  following 
acts  are  forbidden  to  be  done,  under  severe  penalties,  within 
the  territory  and  jurisdiction  of  the  United  States,  to  wit: 

"1.  Accepting  and  exercising  a  commission  to  serve  either 
of  the  said  belligerents  by  land  or  by  sea  against  the  other 
belligerent. 

"2.  Enlisting  or  entering  into  the  service  of  either  of  the 
said  belligerents  as  a  soldier,  or  as  a  marine,  or  seaman,  on 
board  of  any  vessel  of  war,  letter  of  marque,  or  privateer. 

"3.  Hiring  or  retaining  another  person  to  enlist  or  enter 
himself  in  the  service  of  either  of  the  said  belligerents  as  a 
soldier,  or  as  a  marine,  or  seaman  on  board  of  any  vessel  of 
war,  letter  of  marque,  or  privateer. 

"4.  Hiring  another  person  to  go  beyond  the  limits  or  juris- 
diction of  the  United  States  with  intent  to  be  enlisted  as  afore- 
said. 

"5.  Hiring  another  person  to  go  beyond  the  limits  of  the 
United  States  with  intent  to  be  entered  into  service  as  afore- 
said. 

vessels  making  free  goods,  insomuch  that  all  things  shall  be  adjudged 
free  which  shall  be  on  board  any  vessel  belonging  to  the  neutral 
party,  although  such  things  belong  to  an  enemy  of  the  other;  and 
the  same  freedom  shall  be  extended  to  persons  who  shall  be  on  hoard 
a  free  vessel,  although  they  should  be  enemies  to  the  other  party, 
unless  they  be  soldiers  in  actual  service  of  such  enemy."  Article 
12,  Treaty  between  United  States  and  Prussia,  1785. 

»  1  American  State  Papers,  Foreign  Relations,  69,  140,  147,  160. 

10  1  Stat.  p.  381,  e.  50. 

11  Rev.  St.  §§  52S1-5291  (U.  S.  Comp.  St.  1901,  pp.  3599-3602). 


390  NATUIU:  OF  NEUTRALITY.  (Ch.  22 

"6.  Retaining  another  person  to  go  beyond  the  limits  of 
the  United  States  with  intent  to  be  enhsted  as  aforesaid. 

"7.  Retaining-  another  person  to  go  beyond  the  limits  of  the 
United  States  with  intent  to  be  entered  into  service  as  afore- 
said. (But  the  said  act  is  not  to  be  construed  to  extend  to  a 
citizen  or  subject  of  either  belligerent  who,  being  transiently 
within  the  United  States,  shall,  on  board  of  any  vessel  of  war, 
which,  at  the  time  of  its  arrival  within  the  United  States,  was 
fitted  and  equipped  as  such  vessel  of  war,  enlist  or  enter  him- 
self, or  hire  or  retain  another  subject  or  citizen  of  the  same 
belligerent,  who  is  transiently  within  the  United  States,  to 
enlist  or  enter  himself,  to  serve  such  belligerent  on  board  such 
vessel  of  war,  if  the  United  States  shall  then  be  at  peace  with 
such  belligerent.) 

"8.  Fitting  out  and  arming,  or  attempting  to  fit  out  and 
arm,  or  procuring  to  be  fitted  out  and  armed,  or  knowingly 
being  concerned  in  the  furnishing,  fitting  out,  or  arming  of. 
any  ship  or  vessel  with  intent  that  such  ship  or  vessel  shall  be 
employed  in  the  service  of  either  of  the  said  belligerents. 

"9.  Issuing  or  delivering  a  commission  within  the  territory 
or  jurisdiction  of  the  United  States  for  any  ship  or  vessel  to 
the  intent  that  she  may  be  employed  as  aforesaid. 

"10.  Increasing  or  augmenting,  or  procuring  to  be  increased 
or  augmented,  or  knowingly  being  concerned  in  increasing  or 
augmenting',  the  force  of  any  ship  of  war,  cruiser,  or  other 
armed  vessel,  which  at  the  time  of  her  arrival  within  the 
United  States  was  a  ship  of  war,  cruiser,  or  armed  vessel  in 
the  service  of  either  of  the  said  belligerents,  or  belonging  to 
the  subjects  of  either,  by  adding  to  the  number  of  guns,  of 
such  vessels,  or  by  changing  those  on  board  of  her  for  guns 
of  a  larger  caliber,  or  by  the  addition  thereto  of  any  equip- 
ment solely  applicable  to  war. 

.  "11.  Beginning  or  setting  on  foot,  or  providing  or  preparing 
the  means  for,  any  military  expedition  or  enterprise  to  be 
carried  on  from  the  territory  or  jurisdiction  of  the  United 
States  against  the  territories  or  dominions  of  either  of  the 
said  belligerents."  ^^ 

12  Foreign  Relations  U.  S.,  1904,  p.  32. 


§174  NEUTRALIZATION.  391 

The  acts  were  approved  as  the  embodiment  of  good  practice, 
particularly  in  Great  Britain.  In  1819  the  British  Parliament 
passed  an  act  embodying  similar  principles.^^  This  act  re- 
mained in  force  till  the  passage  of  the  British  Foreign  Enlist- 
ment Act  of  1870/*  which  enlarges  the  range  of  prohibited 
actions. 

Thus  in  early  times  the  only  relations  which  were  regarded 
as  possible  were  either  of  peace  or  of  war.  Later  there  were 
grades  of  impartiality.  There  then  developed  a  doctrine  of 
general  abstention  of  the  neutral  state  from  participation,  ei- 
ther directly  or  indirectly,  in  the  hostilities.  Since  the  middle 
of  the  nineteenth  century  there  has  been  a  growing  recognition 
of  the  positive  obligation  of  the  neutral  state  to  prevent  or 
prohibit  certain  acts  within  its  territorial  jurisdiction,  such  as 
use  of  its  territory  as  a  military  base.  With  the  development 
of  neutrality  there  has  also  gone  an  increasing  recognition 
of  the  right  of  the  belligerent  to  carry  on  hostilities  and  the 
obligation  of  the  neutral  to  submit  to  reasonable  constraint 
because  of  the  existence  of  hostilities.  This  duty  of  toleration 
is  most  frequently  seen  in  the  exercise  of  the  right  of  visit  and 
search. 

The  neutral  rights  and  obligations  as  at  present  developed, 
therefore,  involve  the  abstention  from,  the  prevention  of,  and 
the  toleration  of  certain  acts.  Some  of  these  are  made  sub- 
jects of  international  agreement  in  the  Hague  Conventions  of 
1907,  thus  showing  in  practice  the  full  recognition  of  the 
status  of  neutrality. 

NEUTRALIZATION. 

174.    By  conventions,  tlie  subjects  of  an  agreement  are  some- 
times given  a  full  or  a  qualified  neutral  status. 

(a)  States  or  portions  of  states  are  sometimes  neutralized. 
Such  states  are  bound  to  refrain  from  offensive  hostilities,  but 
are  usually  permitted  to  keep  an  army  for  defense.    The  de- 

13  St.  .59  Geo.  Ill,  c.  69. 

14  St.  33  &  34  Vict.  c.  90.  In  Regina  v.  Jameson  [1896]  2  Q.  B.  42.5, 
this  act  was  held  to  be  operative  as  to  a  British  subject  who  violated 
it  bv  furnishing  assistance  from  a  place  outside  British  dominion. 


392  NATUKE   OF   NEUTRALITY.  (Ch.  22 

gree  of  restraint  upon  the  action  of  the  state  varies  according 
to  the  convention.  Provision  was  made  for  the  perpetual 
neutrahzation  of  Switzerland  at  the  Congress  of  Vienna,  on 
March  20,  1S15.  and  the  Confederation  agreed  to  its  terms  on 
May  27th  of  the  san^e  year.^'  The  neutralization  of  Belgium 
was  provided  for  in  the  Treaty  of  London,  November  15, 
1831.  The  neutrality  of  the  islands  of  Corfu  and  Paxo  was 
provided  for  in  the  Treaty  of  London  of  Alarch  29,  1864. 

(b)  The  neutralization  of  commercial  routes  which  are  in 
the  main  lines  of  the  world's  commerce  is  considered  ex- 
pedient. It  has  been  proposed  that  certain  routes  commonly 
traversed  by  commerce  upon  the  high  seas  should  be  neutral- 
ized. The  Suez  Canal  is  neutralized  by  the  Convention  of 
Constantinople  of  October  29,  1888,^®  to  which  nine  states  are 
parties.  The  Panama  Canal  is  to  a  certain  extent  neutralized 
by  a  convention  between  the  United  States  and  Great  Britain 
of  November  18,  1901." 

15  1  Hertslet,  64. 

ic  Parliamentary  Papers,  Commercial,  No.  2  (18S9) ;  Id.  France,  No. 
1,  1904,  p.  9 ;  Holland,  Studies  in  Int.  Law,  p.  269. 

17  "Article  III.  The  United  States  adopts,  as  the  basis  of  the  neu- 
tralization of  such  ship  canal,  the  following  rules,  substantially  as 
embodied  in  the  Convention  of  Constantinople,  signed  the  28th  Oc- 
tober, ISSS,  for  the  free  navigation  of  the  Suez  Canal,  that  is  to  say: 

"1.  The  canal  shall  be  free  and  open  to  the  vessels  of  commerce 
and  of  war  of  all  nations  observing  these  rules,  on  terms  of  entire 
equality,  so  that  there  shall  be  no  discrimination  against  any  such 
nation,  or  its  citizens  or  subjects,  in  respect  of  the  conditions  or 
charges  of  traffic,  or  otherwise.  Such  conditions  and  charges  of 
traffic  shall  be  just  and  equitable. 

"2.  The  canal  shall  never  be  blockaded,  nor  shall  any  right  of  war 
be  exercised  nor  any  act  of  hostility  be  committed  within  it.  The 
United  States,  however,  shall  be  at  liberty  to  maintain  such  military 
police  along  the  canal  as  may  be  necessary  to  protect  it  against  law- 
lessness and  disorder. 

"3.  Vessels  of  war  of  a  belligerent  shall  not  revictual  nor  take  an.v 
stores  in  the  canal  except  so  far  as  may  be  strictly  necessary ;  and 
the  transit  of  such  vessels  through  the  canal  shall  be  effected  with 
the  least  possible  delay  in  accordance  with  the  regulations  in  force, 
and  with  only  such  intermission  as  may  result  from  the  necessities 
of  the  service. 

"Prizes  shall  be  in  all  respects  subject  to  the  same  rules  as  vessels 
of  war  of  the  belligerents. 


§  175)  DECLARATION    OF    NEUTRALITY.  393 

(c)  The  conventions  based  upon  the  Geneva  Convention  of 
August  22,  1864,  have  for  their  object  the  exemption  from 
the  consequences  of  war  of  the  materiel  and  personnel  en- 
gaged in  care  of  the  sick,  wounded,  or  shipwrecked  in  war.^® 


DECLARATION  OF  NEUTRALITY. 

175.  'While  tlie  practice  is  not  uniform,  it  is  customary  for  a 
neutral  state  to  issue  a  declaration  making  knotvn  the 
position  it  will  assume  during  the  hostilities. 

Sometimes  such  proclamations  are  brief  and  general;  oth- 
ers may  enter  into  details  in  regard  to  the  attitude  of  the  state 
and  the  conduct  of  public  and  private  persons.  The  German 
declaration  of  February   13,   1904,   was  brief  and  general. ^^ 

"4.  No  belligerent  shall  embark  or  disembark  troops,  munitions  of 
war,  or  warlike  materials  in  the  canal,  except  in  case  of  accidental 
hindrance  of  the  transit,  and  in  such  case  the  transit  shall  be  re- 
sumed with  all  possible  despatch. 

"5.  The  provisions  of  this  article  shall  apply  to  waters  adjacent 
to  the  canal,  within  three  marine  miles  of  either  end.  Vessels  of 
war  of  a  belligerent  shall  not  remain  in  such  waters  longer  than 
twenty-four  hours  at  any  one  time,  except  in  case  of  distress,  and 
in  such  case,  shall  depart  as  soon  as  possible;  but  a  vessel  of  war 
of  one  belligerent  shall  not  depart  within  twenty-four  hours  from 
the  departure  of  a  vessel  of  war  of  the  other  belligerent. 

"6.  The  plant,  establishments,  buildings,  and  all  work  necessary 
to  the  construction,  maintenance,  and  operation  of  the  canal  shall 
be  deemed  to  be  part  thereof,  for  the  purposes  of  this  treaty,  and 
in  time  of  war,  as  in  time  of  peace,  shall  enjoy  complete  immunity 
from  attack  or  injury  by  belligerents,  and  from  acts  calculated  to 
impair  their  usefulness  as  part  of  the  canal." 

18  Geneva  Convention  of  July  6,  1900,  Appendix,  p,  50S;  Convention 
for  Adaptation  to  Naval  War  of  Principles  of  Geneva  Convention, 
The  Hague,  1907,  Appendix,  p.  549. 

19  "German  Empire— Proclamation.  According  to  official  declara- 
tions which  have  been  made  here  by  the  Imperial  Russian  Govern- 
ment and  the  Imperial  Japanese  Government,  a  state  of  war  now  ex- 
ists between  Russia  and  Japan.  This  is  hereby  proclaimed,  with 
the  further  announcement  that  it  is  the  duty  of  every  one  within 
the  territory  of  the  Empire  and  in  the  German  protectorates,  as  well 
as  of  Germans  in  foreign  lands,  to  refrain  from  all  acts  contrary  to 
the  neutrality  of  Germany. 

"Berlin,  February  13,  1904. 

"The  Imi^erial  Chancellor,  Count  von  Biilow." 


394  NATUUE   OF   NEUTRALITY.  (Ch.  22 

The  Brazilian  regulations  of  May  5,  1898,  were  detailed.  The 
Brazilian  regulations  contained  the  general  provision  that  "in- 
dividuals residing"  in  Brazil,  citizens  or  foreigners,  must  abstain 
from  all  participation  and  aid  in  favor  of  either  of  the  bellig- 
erents, and  may  not  do  any  act  which  might  be  considered  as 
hostile  to  either  one  of  the  two  parties,  and,  therefore,  con- 
trary to  the  obligations  of  neutrality,"  and  among  the  special 
provisions  were  those  relating  to  privateers,  enlistment,  ex- 
portation of  war  material,  use  of  telegraph,  twenty-four  hour 
sojourn  of  belligerent  ships,  entrance  of  prizes,  coaling,  pro- 
visioning, and  fitting  of  belligerent  ships  of  war,  sailing  of 
merchant  ships,  etc.-" 

The  United  States  took  an  advanced  step  in  1904  in  regu- 
lating by  proclamation  the  conduct  of  national  civil,  military, 
and  naval  officials  as  regards  their  relations  to  belligerents.^^ 

20  Foreign  Relations  U.  S.,  1898,  p.  S4G. 

21  "Executive  order: 

"White  House,  Marcli  10.  1904. 
"All  officials  of  the  government,  civil,  military-,  and  naval,  are  here- 
by directed  not  only  to  observe  the  President's  proclamation  of  neu- 
trality in  the  pending  war  between  Russia  and  Japan,  but  also  to  ab- 
stain from  either  action  or  speech  which  can  legitimately  cause  ir- 
ritation to  either  of  the  combatants.  The  government  of  the  United 
States  represents  the  people  of  the  United  States,  not  only  in  the 
sincerity  with  which  it  is  endeavoring  to  keep  the  scales  of  neutrality 
exact  and  even,  but  in  the  sincerity  with  which  it  deplores  the  break- 
ing out  of  the  present  war,  and  hopes  that  it  will  end  at  the  earliest 
possible  moment  and  with  the  smallest  possible  loss  to  those  engaged. 
Such  a  war  inevitably  increases  and  inflames  the  susceptibilities  of 
the  combatants  to  anything  in  the  nature  of  an  injury  or  slight  by 
outsiders.  Too  often  combatants  make  conflicting  claims  as  to  the 
duties  and  obligations  of  neutrals,  so  that  even  when  discharging 
these  duties  and  obligations  with  scrupulous  care  it  is  difficult  to 
avoid  giving  offense  to  one  or  the  other  party.  To  such  unavoidable 
causes  of  offense,  due  to  the  performance  of  national  duty,  there 
must  not  be  added  any  avoidable  causes.  It  is  always  unfortunate 
to  bring  Old  World  antipathies  and  jealousies  into  our  life,  or  by 
speech  or  conduct  to  excite  auger  and  resentment  toward  our  na- 
tion in  friendly  foreign  lands;  but  in  a  government  employe,  whose 
official  position  makes  him  in  some  sense  the  representative  of  the 
people,  the  mischief  of  such  actions  is  greatly  increased.  A  strong 
and  self-confident  nation  should  be  peculiarly  careful,  not  only  of 
the  rights,  but  of  the  susceptibilities,  of  its  neighbors;  and  nowadays 


I  176)  DIVISION    OF    SUBJECT.  395 


DIVISION   OF    SUBJECT. 

176.    Relations    existing    betinreen    neutrals    and    belligerents 
naturally  fall  under  two  beads: 

(a)  The  relations  existing  betw^een  tbe  belligerents  and  neu- 

tral states,  as  sucb. 

(b)  The  relations   existing  betvreen  the  belligerents  and  in- 

dividuals. 

The  Relations  between  BelH_^erents  and  Neutral  States. 

(a)  The  relations  between  the  belligerents  and  neutral 
states  are  based  upon  the  respect  for  the  sovereign  rights  of 
the  states.  Established  usage  may  determine  what  course 
should  be  pursued  under  certain  circumstances.  In  recent 
years,  particularly  since  the  First  Peace  Conference  at  The 
Hague  in  1899,  treaties  and  general  international  agreements 
have  been  entered  upon  to  establish  uniformity  of  practice  in 
time  of  war. 

Relations  between  Belligerents  and  Neutral  Individuals. 

(b)  Between  belligerents  and  neutral  individuals  there  exist 
no  mutual  obligations.  The  neutral  individual  owes  no  obliga- 
tion to  the  belligerent,  and  under  ordinary  circumstances  the 
belligerent  exercises  no  jurisdiction  over  the  neutral  individual. 
In  general,  the  neutral  individual  may  engage  in  commerce  in 
time  of  war  as  in  time  of  peace.  There  are  conditions  under 
which  the  individual  may  act  in  such  manner  as  to  constitute  a 
material  interference  with  the  conduct  of  the  hostilities.  The 
belligerent  then  claims  the  right  to  exercise  such  authority  as 
will  prevent  or  deter  the  neutral  from  thus  acting.  The  bellig- 
erent also  claims  the  right  to  exercise  reasonable  care  to  deter- 
mine whether  such  action  is  contemplated  as  by  visit  and  search. 

all  the  nations  of  the  world  are  neighbors  one  to  the  other.  Courtesy, 
moderation,  and  self-restraint  should  mark  international,  no  less 
than  private,  intercourse. 

"All  the  ofBcials  of  the  government,  civil,  military,  and  naval,  are 
expected  so  to  carry  themselves  both  in  act  and  in  deed  as  to  give 
no  cause  of  just  offense  to  the  people  of  any  foreign  and  friendly 
power — and  with  all  mankind  we  are  now  in  friendship. 

"Theodore  Roosevelt" 

Foreign  Relations  U.  S.,  1904,  p.  185. 


396  NATURE   OF   NEUTRALITY.  (Ch,  22 

The  action  of  the  neutral  individual  may  sometimes  be  of  such 
character  as  to  show  that  the  neutral  state  has  not  taken  rea- 
sonable precautions  against  allowing-  neutral  territory  to  be 
used  as  a  base  for  hostile  purposes.  It  is  customary  for  the 
neutral  state  to  tolerate  interference  with  the  acts  of  neutral 
individuals  in  the  time  of  war  which  would  not  be  allowed  in 
time  of  peace,  and  also  to  take  precautionary  measures  and  as- 
sume obligations  in  regard  to  acts  of  its  nationals  which  it 
would  not  take  or  assume  in  time  of  peace.  The  most  fre- 
quent relationships  into  which  belligerents  and  neutral  individ- 
uals come  involve . 

(1)  Ordinary  commerce. 

(2)  Visit  and  search. 

(3)  Contraband. 

(4)  Blockade. 

(5)  Continuous  voyage. 

(6)  Unneutral  service. 

(7)  Convoy. 

(8)  Prize. 


§  178;  VISIT   AND  SEARCH.  397 

CHAPTER  XXIII. 

VISIT  AND  SEARCH. 

177.  Visit  and  Search. 

178.  The  Exercise  of  the  Right. 

179.  Method  of  Visit  and  Search. 

ISO.  Exemption  from  and  Limitation  of  Right. 

181.  Convoy. 

182.  Grounds  of  Capture. 

183.  Transfer  of  Property. 

184.  Treatment  of  Captured  Vessels. 

185.  Destruction  or  Approipriation  of  Property  at  Sea. 

VISIT   AND    SEARCH   IN   V/AR. 

177.  In  time  of  -wrar,  visit  and  searcli  is  a  right  in  accord  x^th, 

'orliicli  a  belligerent  vessel  may  stop,  visit,  and  searcli 
a  neutral  vessel,  in  order  to  learn  xtrliether  it  is  in  any 
way  connected  'with  the  hostilities. 

By  visit  and  search  the  belligerent  usually  endeavors  to  as- 
certain the  nationality  of  the  vessel,  whether  neutral  or  bel- 
ligerent; the  nature  of  the  cargo,  whether  contraband  or  in- 
nocent ;  the  destination,  whether  enemy  or  neutral ;  and  the 
nature  of  the  service,  whether  neutral  or  unneutral.^ 

In  order  to  ascertain  the  identity  or  nationality  of  a  vessel 
which  would  not  be  liable  to  visit  and  search,  a  belligerent 
sometimes  exercises  what  is  called  the  "right  of  approach." 

THE  EXERCISE  OF  THE  RIGHT  OF  VISIT  AND  SEARCH. 

178.  The   right   of   visit   and   search  in  general   may  be   exer- 

cised— 

(a)  By    regularly   commissioned    vrar    vessels    of    the    bellig- 

erents. 

(b)  Over  private  vessels  of  neutrals. 

(c)  At  any  point  outside   of  neutral  jurisdiction. 

(d)  During  the  period  of  the  war. 

1  The  right  of  visiting  and  searching  merchant  ships  upon  the  high 
seas,  whatever  be  the  ships,  whatever  be  the  cargoes,  whatever  be 


398  VISIT  AND   SEARCH.  (Ch.  2S 

(a)  Before  the  Declaration  of  Paris  of  185G,  by  which  "pri- 
vateering is  and  remains  abolished,"  there  was  abuse  by 
privateers  of  the  right  of  visit  and  search,  even  though  the 
privateers  were  commissioned.  There  was  no  objection  to  the 
exercise  of  this  right  by  the  regular  naval  forces  of  the  bel- 
ligerents. The  neutral  has,  however,  a  right  to  demand  that 
there  shall  be  no  interference  with  his  commerce  in  time  of 
war  by  vessels  of  the  belligerents  for  whose  acts  the  belligerent 
does  not  assume  full  responsibility.  The  Hague  Convention  of 
1907,  therefore,  provided  that  "a  merchant  ship  converted  into 
a  warship  cannot  have  the  rights  and  duties  accruing  to  such 
vessels  unless  it  is  placed  under  the  direct  authority,  immediate 
control,  and  responsibility  of  the  power  whose  flag  it  flies."  ^ 
The  command  of  such  vessels  must  be  in  regularly  commis- 
sioned officers  of  the  state. 

(b)  As  persons  residing  within  neutral  jurisdiction  are  per- 
mitted to  carry  on  commerce  in  the  time  of  war  as  in  the  time 
of  peace,  the  belligerent  as  a  measure  of  reasonable  protection 
must  assure  himself  or  be  assured  that  the  neutral  is  not  acting 
in  such  a  manner  as  to  injure  him  or  to  aid  the  other  bellig- 
erent. 

The  method  of  gaining  this  assurance  is  commonly  by  visit 
to  a  neutral  private  vessel,  and,  if  there  is  then  doubt,  by 
search  of  the  vessel.  It  has  been  proposed  that  vessels  cer- 
tificated as  innocent  by  neutral  officials  authorized  for  this 
purpose  be  exempted  from  search." 

Before  the  Declaration  of  London,  1909,  neutral  private 
vessels  under  convoy  were  by  some  states  allowed  exemption, 
but  Great  Britain  had  not  until  that  time  admitted  this  as  a 
right. 

the  destinations,  is  an  incontestable  right  of  the  lawfully  commis- 
sioned cruisers  of  a  belligerent  nation.    1  C.  Rob.  340. 

2  Conversion  of  Merchant  Ships  into  War  Ships,  ante,  p.  314. 

3  Earl  Grey  to  Sir  Edward  Fry,  First  British  Plenipotentiary  to 
Second  Hague  Peace  Conference,  June  12,  1907:  "29.  His  Majesty's 
government  would  further  be  glad  to  see  the  right  of  search  limited 
in  every  practicable  way;  e.  g.,  by  the  adoption  of  a  system  of  con- 
sular certificates  declaring  the  absence  of  contraband  from  the  cargo, 
and  by  the  exemption  of  passenger  and  mail  steamers  upon  defined 
routes,  etc."  Correspondence  Respecting  Second  Peace  Conference, 
Parliamentary  Papers,  Misc.  No.  1  (1908)  p.  17. 


§  179)  METHOD    OF    VISIT   AND    SEARCH.  399 

Public  vessels  of  neutrals,  bound  by  good  faith  to  act  as 
neutrals,  are  exempt  from  visit  and  search,  though  there  has 
been  some  question  as  to  the  extension  of  exemption  to  such 
public  vessels  as  may  be  engaged  in  occupations  of  a  commer- 
cial nature;  e.  g.,  the  postal  service.  It  is  maintained  that,  if 
such  vessels  are  commanded  by  a  regularly  commissioned  offi- 
cer of  the  navy,  his  word  should  be  sufficient  assurance  of  the 
character  of  the  vessel.* 

(c)  The  right  of  search  may  in  general  be  exercised  at  any 
point  within  the  jurisdiction  of  either  belligerent,  on  the  high 
seas,  and  at  any  point  outside  of  neutral  jurisdiction.  Restric- 
tions upon  the  exercise  of  war  rights  are  sometimes  provided 
in  treaties.^ 

(d)  The  right  of  visit  and  search  continues  during  the  pe- 
riod of  the  war.  An  armistice  or  suspension  of  hostilities 
binds  the  belligerent  forces,  but  does  not  put  obligations  upon 
neutrals;  therefore  the  belligerent  for  his  own  protection 
would  naturally  continue  the  exercise  of  visit  and  search  until 
peace  is  assured.  The  armistice  agreed  upon  between  Russia 
and  Japan  September  1,  1905,  regulating  the  action  of  their 
forces,  specifically  stated  that  "maritime  captures  will  not  be 
suspended  by  the  armistice." 

METHOD    OF    VISIT    AND    SEARCH. 

179.  .'Where  treaty  provisions  in  regard  to  the  exercise  of  the 
right  of  visit  and  search  do  not  exist,  the  right  should 
be  exercised  Twith  consideration  for  the  general  rights 
of  the  neutral. 

The  treaty  between  the  United  States  and  Italy  of  February 
26,  1871,  provides  that  "in  order  to  prevent  all  kinds  of  dis- 
order in  the  visiting  and  examination  of  the  ships  and  cargoes 

4  Perels,  Offentliche  Seerecht,  §  52,  IV. 

5  "The  canal  shall  never  be  blockaded,  nor  shall  any  right  of  war 
be  exercised  nor  any  act  of  hostility  be  committed  within  it.  The 
United  States,  however,  shall  be  at  liberty  to  maintain  such  military 
police  along  the  canal  as  may  be  necessary  to  protect  it  against  law- 
lessness and  disorder."  Article  III,  Treaty  between  Great  Britain 
and  United  States,  Nov.  18,  1901,  Traus-Is.thmian  Canal. 


400  VISIT   AND   SEARCH.  (Cll.  23 

of  both  the  contracting  parties  on  the  high  seas,  they  have 
agreed  mutually  that,  whenever  a  vessel  of  war  shall  meet 
with  a  vessel  not  of  war  of  the  other  contracting  party,  the 
first  shall  remain  at  a  convenient  distance,  and  may  send  its 
boat  with  two  or  three  men  only,  in  order  to  execute  the  said 
examination  of  the  papers,  concerning  the  ownership  and 
cargo  of  the  vessel,  without  causing  the  least  extortion,  vio- 
lence, or  ill  treatment,  and  it  is  expressly  agreed  that  the  un- 
armed party  shall  in  no  case  be  required  to  go  on  board  the 
examining  vessel  for  the  purpose  of  exhibiting  his  papers,  or 
for  any  other  purpose  whatever."  "^ 

The  method  prescribed  for  the  United  States  naval  forces 
in  the  Spanish-American  War,  in  1898,  was  as  follows :  "The 
right  should  be  exercised  with  tact  and  consideration,  and  in 
strict  conformity  with  treaty  provisions,  wherever  they  exist. 
The  following  directions  are  given,  subject  to  any  special 
treaty  stipulations :  After  firing  a  blank  charge,  and  causing 
the  vessel  to  lie  to,  the  cruiser  should  send  a  small  boat,  no  lar- 
ger than  a  whale  boat,  with  an  officer  to  conduct  the  search. 
There  may  be  arms  in  the  boat,  but  the  men  should  not  wear 
them  on  their  persons.  The  officer,  wearing  only  his  side 
arms,  and  accompanied  on  board  by  not  more  than  two  men 
of  his  boat's  crew,  unarmed,  should  first  examine  the  vessel's 
papers  to  ascertain  her  nationality  and  her  ports  of  departure 
and  destination.  If  she  is  neutral,  and  trading  between 
neutral  ports,  the  examination  goes  no  further.  If  she  is 
neutral,  and  bound  to  an  enemy's  port  not  blockaded,  the 
papers  which  indicate  the  character  of  her  cargo  should  be 
examined.  If  these  show  contraband  of  war,  the  vessel  should 
be  seized ;  if  not,  she  should  be  set  free,  unless,  by  reason  of 
strong  grounds  of  suspicion,  a  further  search  should  seem  to 
be  requisite."  ^ 

The  Japanese  Regulations  Governing  Captures  at  Sea,  pub- 
lished in  1904,  provide  that  "the  boarding  officer,  before  he 
leaves  the  vessel,  shall  ask  the  master  whether  he  has  any  com- 
plaint regarding  the  procedure  of  visiting  or  searching,  or 
any  other  points,  and  if  the  master  makes  any  complaints   he 

6  Article  18,  17  Stat.  854. 

7  General  Order  492,  U.  S.  Navy  Dept.  June  20,  1898.  No.  13. 


§  180)         EXEMPTION  FROM  VISIT  AND  SEARCH,  ETO.  401 

sliall  request  him  to  produce  tlicm  in  writing."  * 

If  the  firing  of  the  blank  charge  is  not  sufficient  to  cause  a 
vessel  to  lie  to,  a  shot  may  be  fired  across  the  bows;  and,  if 
this  is  not  sufficient,  the  warship  may  use  necessary  force. 


EXEMPTION    FROM    AND     LIMITATION     OF    VISIT    AND 

SEARCH. 

180.  (a)  Public  vessels  of  the  neutral  are  exempt  from,  visit 
and  search. 

(h)  And  neutral  vessels  under  convoy  of  public  vessels  are 
generally  exempt  on  proper  assurances  from  the  com- 
mander of  the  convoy. 

(c)    Neutral  mail  ships  are  searched  only  in  case  of  necessity. 

(a)  Public  vessels  of  the  neutral,  as  representing  the  sov- 
ereignty, are  exempt  from  visit  and  search.  The  word  of  the 
commander  must  be  accepted  as  to  the  character  of  the  vessel. 
Within  the  theater  of  actual  hostile  operations  the  movements 
of  a  neutral  public  vessel  may  necessarily  be  controlled,  or  the 
vessel  may  be  approached  in  order  to  ascertain  its  identity. 

(b)  The  exemption  from  visit  and  search  of  neutral  mer- 
chant vessels  under  convoy  of  a  neutral  warship  is  generally 
granted  upon  proper  assurance.  "The  verbal  declaration  of 
the  commander  of  the  convoy,  on  his  word  of  honor,  that  the 
vessels  under  his  protection  belong  to  the  nation  whose  flag  he 
carries,  and,  when  bound  to  an  enemy's  port,  that  they  have  no 
contraband  goods  on  board,  shall  be  sufficient."  ^  In  case  of 
grave  suspicion,  however,  visit  and  search  of  a  convoyed  ves- 
sel is  permissible.  Up  to  1908,  Great  Britain  was  unwilling  to 
concede  the  right  of  exemption  to  vessels  under  convoy.^" 

8  Article  LXII. 

9  Treaty  between  United  States  and  Italy,  Feb.  2G.  1871,  Art.  XIX, 
17  Stat.  854. 

10  Hall  presented  the  English  view  as  follows:  "It  is  argued  that 
the  commander  of  a  vessel  of  war  in  charge  of  a  convoy  represents 
his  government,  that  his  affirmation  pledges  the  faith  of  his  nation, 
and  that  the  belligerent  has  a  stronger  guarantee  in  being  assured 
by  him  that  the  vessels  in  company  are  not  engaged  In  any  illicit 
traffic  than  in  examining  for  himself  papex'S  which  may  be  fraudu- 
lent. But  unless  the  neutral  state  is  to  exercise  a  minuteness  of  su- 
pervision   over   every   ship    issuing   from    her   ports,    which    would 

WiLS.lNT.L.— 26 


402  VISIT   AND   SEARCH.  (Ch.  23 

(c)  Claims  have  been  made  that  mail  vessels  should  be  ex- 
empt. The  parties  to  The  Hague  Convention  of  190?,  while 
exempting  the  mails,  were  able  to  agree  only  that  "the  ship, 
however,  may  not  be  searched,  except  when  absolutely  neces- 
sary, and  then  only  with  as  much  consideration  and  expedition 
a3  possible."  ^^ 

CONVOY. 

181.  Neutral  vessels  sailing  under  the  escort  of  a  neutral  war- 
ship are  in  general  exempt  from  visit  and  search, 
though  the  commander  of  the  w^arship  is  under  ohliga- 
tion  to  furnish  necessary  information  in  regard  to  the 
vessels  under  his  escort. 

The  so-called  right  of  convoy  is  one  which  has  been  claimed 
for  many  years.  Sweden  claimed  in  the  middle  of  the  seven- 
teenth century  that  neutral  vessels  under  escort  of  a  neutral 
warship  were  exempt  from  visit  and  search.  From  time  to 
time  during  the  following  century  the  right  was  asserted,  but 
it  was  not  till  toward  the  close  of  the  eighteenth  century  that 
it  received  much  consideration.  After  1775  the  right  was  fre- 
quently recognized  in  practice  and  acknowledged  in  treaties. 
While  the  Armed  Neutrality  of  1780  did  not  press  the  right 
of  convoy,  the  Armed  Neutrality  of  1800  was  largely  due  to 
the  action  of  a  British  squadron  in  capturing  a  Danish  war- 
ship which  was  convoying  six  merchant  vessels.    Great  Britain 

probably  be  impossible,  and  which  it  is  not  proposed  to  exact  from 
her,  the  affirmation  of  the  officer  commanding  the  convoy  can  mean 
no  more  than  that  the  ostensible  papers  of  the  vessels  belonging  to  it 
do  not  show  on  their  face  any  improper  destination  or  object.  As- 
suming that  the  officials  at  the  ports  of  the  neutral  country  are 
always  able  and  willing  to  prevent  any  vessel  laden  with  contraband 
from  joining  a  convoy,  the  officer  in  command  must  still  be  unable  to 
affirm  of  the  vessels  under  his  charge  that  no  single  one  is  engaged  in 
carrying  enemy's  dispatches  or  military  passengers  of  importance, 
that  none  have  an  ultimate  intention  of  breaking  a  blockade,  or,  if 
the  belligerent  nation  acts  on  the  doctrine  that  enemy's  goods  in  a 
neutral  vessel  can  be  seized,  that  none  of  the  property  in  course 
of  transport  in  fact  belongs  to  the  enemy."    Int.  Law  (5th  Ed.)  724. 

At  the  International  Naval  Conference  at  London,  1908-09,  Great 
Britain  admitted  the  right  of  convoy. 

11  Right  of  Capture  in  Naval  War,  art.  II,  Scott,  Hague  Conferen- 
ces, p.  283. 


§  181  CONVOY.  403 

refused  to  recognize  the  right  of  convoy,  even  after  the  prin- 
ciple was  generally  accepted  by  the  other  nations.  Great  Brit- 
ain at  last  admitted  the  right  at  the  International  Naval  Con- 
ference in  1908-09. 

While  the  right  was  generally  admitted,  its  exercise  was 
guarded  by  making  the  commander  of  the  convoying  warship 
responsible.  In  theory  he  was  to  furnish  to  the  commander  of 
the  belligerent  warship  the  information  which  that  commander 
would  obtain  by  a  visit  and  search  of  the  vessels  under  his 
escort.  It  was  frequently  prescribed  in  treaties  that  the  verbal 
declarations  of  the  commander  of  the  convoy,  ''on  his  word  of 
honor,  that  the  vessels  under  his  protection  belong  to  the  na- 
tion whose  flag  he  carries,  and,  when  bound  to  an  enemy's 
port,  that  they  have  no  contraband  goods  on  board,  shall  be 
sufficient." 

The  Declaration  of  London,  1909,  made  the  regulations  in 
regard  to  convoy  more  definite,  with  the  view  to  guarding  the 
proper  rights  of  neutrals  without  interfering  with  the  rights 
of  belligerents.  While  declaring  that  neutral  vessels  under 
national  convoy  are  exempt  from  search,  it  makes  it  obligatory 
upon  the  commander  of  the  convoy  to  furnish  in  writing  the 
information  which  the  commander  of  a  belligerent  warship 
might  gain  by  a  visit.  Provision  is  also  made  for  cases  where 
the  commander  of  the  belligerent  warship  thinks  the  com- 
mander of  the  convoy  may  have  been  deceived.  The  belliger- 
ent commander  may  make  known  his  suspicions  to  the  convoy- 
ing officer.  "In  such  case  it  is  for  the  commander  of  the  con- 
voy alone  to  investigate  the  matter.  He  must  record  the  re- 
sult of  such  investigation  in  a  report,  of  which  a  copy  is  hand- 
ed to  the  officer  of  the  warship.  If,  in  the  opinion  of  the  com- 
mander of  the  convoy,  the  facts  shown  in  the  report  justify 
the  capture  of  one  or  more  vessels,  the  protection  of  the  con- 
voy must  be  withdrawn  from  such  vessels."  ^^ 

12  Appendix,  p.  583,  articles  61  and  62. 


404  VISIT  AND   SEARCH.  (Ch.  23 


GROUNDS    OF    CAPTURE. 

182.    The    grounds    for   seizure   of  neutral    private   vessels   are 
that  the  vessel  or  cargo  is  liable  to  confiscation,  or  that 
there   is  reasonable  suspicion  that  the  vessel   is  liable 
to  confiscation. 
Such  grounds  exist: 

(a)  In  case  of  absence  or  irregularity  of  the  ship's  papers. 

(b)  When  the  neutral  vessel  or  its  convoy  resists  search. 

(c)  When  the  vessel  is  under  enemy  convoy. 

(d)  If  the  vessel  breaks  or  attempts  to  break  a  blockade. 

(e)  If  the  vessel  is  itself  contraband  or  is  carrying  contra- 

band. 

(f)  If  the  vessel  is  engaged  in  unneutral  service. 

It  is  for  the  prize  court  to  pronounce  on  the  validity  of  the 
capture  and  to  determine  the  penalty.  If  the  commander  mak- 
ing the  capture  has  good  reason  to  doubt  the  innocence  of  a 
vessel  which  he  overhauls,  he  should  send  her  to  the  prize 
court  for  adjudication.  The  grounds  that  would  justify  cap- 
ture would  not  always  be  sufficient  to  condemn  the  neutral 
vessel  or  cargo.  The  prize  court  may  pass  upon  evidence 
which  the  officer  making  the  capture  may  not  have,  or  may  not 
feel  it  expedient  to  consider.  His  functions  are  administra- 
tive, and  the  judicial  functions  are  properly  left  to  the  prize 
court.  ^^ 

(a)  The  papers  usually  on  board  a  neutral  merchant  vessel 
are  (1)  the  register;  (2)  the  crew  list;  (3)  the  log  book;  (4) 
the  bill  of  health ;  (5)  the  charter  party ;  (6)  invoices ;  (7) 
bills  of  lading.  Not  all  states  require  the  same  papers,  how- 
ever. The  object  of  the  officer  visiting  the  vessel  is  to  find 
out  whether  she  is  liable  to  capture.  His  object  is  in  so  far 
defeated  as  the  papers  are  imperfect.  The  absence,  destruc- 
tion, defacement,  evident  falsification,  or  irregularity  of  any 
of  the  ship's  papers  is  ground  for  capture,  though  the  prize 
court  may  not  consider  this  a  sufficient  ground  for  condemna- 
tion, 

13  Prize  courts  deny  damages  or  costs,  as  against  captors,  in  cases 
of  seizure  made  upon  "probable  cause" ;  that  is  to  say,  where  there 
were  circumstances  sufficient  to  warrant  suspicion,  though  not  to 
warrant  condemnation.    The  Thompson,  3  Wall.  155,  18  L.  Ed.  55. 


§  182)  GROUNDS    OF   CAPTURE.  405 

(b)  When  the  neutral  vessel  itself,  or  its  convoy,  resists 
visit  and  search,  the  rig'ht  of  the  belligerent  is  thwarted,  and 
the  vessel  is  liable  to  capture  and  condemnation.  Simple  at- 
tempt to  escape  by  means  of  flight  is  not  regarded  as  resist- 
ance, though  the  vessel  may  be  brought  to  by  the  use  of  force. 
Refusal  to  admit  the  boarding  officer,  or  refusal  of  the  master 
to  accompany  the  boarding  officer,  or  to  open  at  his  request 
locked  boxes,  etc.,  is  regarded  as  constituting  resistance.  The 
British  decisions  also  regard  resistance  by  the  convoying  ves- 
sel as  resistance  by  the  convoyed  vessel,  which  makes  the  con- 
voyed vessel  liable  to  capture.^* 

(c)  There  has  been  a  difference  of  opinion  in  regard  to  the 
treatment  of  a  neutral  merchant  vessel  under  enemy  convoy. 
It  seems  reasonable  that  this  should  be  regarded  as  an  attempt 
to  avoid  search  by  force,  and  may  be  construed  as  resistance. 
Writers  in  general,  except  Wheaton,  so  regard  it,  and  consider 
the  vessel  thus  escorted  as  liable  to  capture. ^^ 

A  belligerent  vessel,  overhauling  a  neutral  merchant  vessel 
guilty  of  (d)  breach  of  blockade,  (e)  carriage  of  contraband, 
or  (f)  unneutral  service,  should  send  the  vessel  to  a  prize  court. 

14  The  Maria,  1  C.  Rob.  340;  Declaration  of  London,  1909,  art.  G3, 
Appendix,  p.  584. 

15  "Thie  mere  circumstance  of  sailing  in  company  with  a  belligerent 
convoy  had  no  such  effect  [defeat  of  the  belligerent  right  of  search]. 
Being  an  enemy,  the  belligerent  had  a  right  to  i*esist.  The  masters 
of  the  vessels  under  his  convoy  could  not  be  involved  in  the  con- 
sequences of  that  resistance,  because  they  were  neutral,  and  had  not 
actually  participated  in  the  resistance.  They  could  no  more  be 
involved  in  the  consequences  of  a  resistance  by  the  belligerent,  which 
is  his  own  lawful  act,  than  is  the  neutral  shipper  of  goods  on  boai'd 
a  belligerent  vessel  for  the  resistance  of  the  master  of  that  vessel, 
or  the  owner  of  neutral  goods  found  in  a  belligerent  fortress  for 
the  consequences  of  its  resistance."     Wheaton,  Int.  Law,  §  533. 


406  VISIT  AND   SEARCH.  (Ch.  23 


TRANSFER    OF    BELIilGERENT    PROPERTY    IN    ANTICI- 
PATION   OF    OR   DURING   ^WAR. 

183.  <a)  The  continental  opinion  ivas  to  regard  the  transfer 
of  property  to  a  neutral  in  anticipation  of  or  during 
\rar  as  invalid; 

(b)  Virhile  the  American,  British,  and  Japanese  courts  have 

inclined  to  throw  the  burden  of  proof  of  bona  fide  OAvn- 
ership  upon  the  purchaser. 

(c)  The    Declaration    of    IJondon,    in     1909,    recognized    the 

transfer  of  an  enemy  vessel  to  a  neutral  flag  before  the 
outbreak  of  hostilities  as  in  general  valid,  and  the 
transfer  after  the  outbre&k  of  ivar  as  in  general  void, 
though  making  provisions  in  each  case  to  guard  the  re- 
spective rights  of  the  neutrals  and  of  the  belligerents. 

In  general,  in  time  of  war,  goods  shipped  on  account  of 
the  consignee  and  at  his  risk  are  regarded  as  his  goods  from 
the  time  of  departure  from  port,  and  the  character  of  these 
goods  cannot  change  during  the  voyage.  If  they  were  hostile 
at  the  commencement  of  the  voyage,  they  remain  hostile  till 
the  end  of  the  voyage. ^*^  If  a  contract  made  before,  and  not 
in  anticipation  of,  war  places  the  risk  upon  the  consignor  and 
is  proven  to  be  bona  fide,  the  property  will  remain  in  tlie  con- 
signor, and  may  be  exempt.^'  By  the  Declaration  of  London, 
1909: 

"Article  60.  Enemy  goods  on  board  an  enemy  vessel  retain 
their  enemy  character  until  they  reach  their  destination,  not- 
withstanding any  transfer  effected  after  the  outbreak  of  hos- 
tilities while  the  goods  are  being  forwarded. 

"If,  however,  prior  to  the  capture,  a  former  neutral  owner 
exercises,  on  the  bankruptcy  of  an  existing  enemy  owner,  a 
recognized  legal  right  to  recover  the  goods,  they  regain  their 
neutral  character."  ^* 

(a)  The  French  rule  of  July  26,  1778,  required  that,  to  be 
a  valid  sale,  the  transaction  must  be  regular  and  in  port  before 
the  commencement  of  war.     The  rule  of  the  Institute  of  In- 

16  The  Francis,  1  Gall.  44.").  Fed.  Cas.  No.  .m32. 

J  7  The  Atlas,  2  C.  Rob.  299. 

i8  Declaration  of  Loudon,  1909,  c.  VI,  Appendix,  p.  583. 


§  183)  TllAXSFEK   TO    NEUTUAL    FLAG.  407 

ternational  Law  provided  that  in  time  of  war  new  nationality 
could  not  be  acquired  by  a  beUigerent  vessel  during  a  voyage.^® 

(b)  The  attitude  of  the  United  States  and  Japan  was  well 
stated  in  the  British  case  of  the  Ernest  Merck:  "The  law  re- 
quires, where  a  vessel  has  been  purchased  shortly  before  the 
commencement  of  the  war  or  during  the  war,  clear  and  satis- 
factory proof  of  the  right  and  title  of  the  neutral  claimant, 
and  of  the  entire  divestment  of  all  right  and  interest  in  the 
enemy  vendor.  The  onus  is  put  upon  the  claimant  to  produce 
this  proof;  if  he  does  not  do  so,  the  court  cannot  restore. 
The  court  is  not  called  upon  to  say  that  the  transaction  is  prov- 
ed to  be  fraudulent ;  it  is  not  required  that  the  court  should 
declare  affirmatively  that  the  enemy's  interest  remains ;  it  is 
sufficient  to  bar  restitution  if  the  neutral  claim  is  not  unequiv- 
ocally sustained  by  the  evidence."  ^^ 

(c)  (1)  Transfer  before  War. — The  General  Report  of  the 
Drafting  Committee  of  the  International  Naval  Conference 
says  in  regard  to  the  transfer  to  a  neutral  flag : 

"Chapter  V. — Transfer  of  Flag.  An  enemy  merchant  ves- 
sel is  liable  to  capture,  whereas  a  neutral  merchant  vessel  is 
spared.  It  may  therefore  be  understood  that  a  belligerent 
cruiser  encountering  a  merchant  vessel  which  lays  claim  to 
neutral  nationality  has  to  inquire  whether  such  nationality  has 

19  "L'acte  juridique  constatant  la  vente  d'un  navire  enuemi  faite 
durant  la  guerre  doit  etre  parfait,  et  le  navire  doit  etre  enregistre 
conformement  Sb  la  registration  du  pays  dont  il  acquiert  la  nation- 
alite,  avant  qu'il  quitte  le  port  de  sortie.  La  nouvelle  nationalite 
ne  pent  etre  acquise  au  navire  par  nue  vente  faite  en  cours  de  voy- 
age." Sec.  26,  Reglement  international  des  prises  maritimes.  9 
Annuaire. 

-oThe  Ernst  Mercli,  Spinks,  98;  Tlie  Benito  Estenger,  176  U.  S. 
568,  20  Sup.  Ct.  489,  44  L.  Ed.  592. 
Japanese  Regulations  Governing  Captures  at  Sea,  1904: 
"Art.  VI.  The  following  are  enemy  vessels:     *     *     * 
"4.  Vessels,  the  ownership  of  which  has  been  transferred  before 
the  war,  but  in  expectation  of  its  outbreak,  or  during  the  war,  by 
the  enemy  state  or  its  subjects  to  persons  having  residence  in  Japan 
or  a  neutral  state,  unless  there  is  proof  of  a  complete  and  bona  fide 
transfer  of  ownership. 

"In  case  the  ownership  of  a  vessel  is  transferred  during  its  voyage, 
and  actual  delivery  is  not  effected,  such  transfer  of  ownership  shall 
not  be  considered  as  complete  and  bona  fide." 


408  VISIT  AND   SEARCH.  (Cll.  23 

been  acquired  legitimately  or  for  the  purpose  of  shielding 
the  vessel  from  the  risks  to  which  she  would  have  been  ex- 
posed if  she  had  retained  her  former  nationality.  This  ques- 
tion naturally  arises  when  the  transfer  is  of  a  date  compara- 
tively recent  at  the  moment  at  which  the  visit  and  search 
takes  place,  whether  the  transfer  may  actually  be  before,  or 
after,  the  opening-  of  hostilities.  The  question  will  be  answer- 
ed differently  according  as  it  is  looked  at  more  from  the  point 
of  view  of  commercial  or  more  from  the  point  of  view  of  bel- 
ligerent interests.  It  is  fortunate  that  agreement  has  been 
reached  on  a  rule  which  conciliates  both  these  interests  so  far 
as  possible  and  which  informs  belligerents  and  neutral  com- 
merce of  their  position." 

To  provide  for  the  protection  of  legitimate  commerce  with- 
out unduly  restricting  belligerent  rights  the  following  rule 
was  adopted : 

"Article  55.  The  transfer  of  an  enemy  vessel  to  a  neutral 
flag,  effected  before  the  opening  of  hostilities,  is  valid,  unless 
it  is  proved  that  such  transfer  was  made  in  order  to  evade  the 
consequences  which  the  enemy  character  of  the  vessel  would 
involve.  There  is,  however,  a  presumption  that  the  transfer 
is  void  if  the  bill  of  sale  is  not  on  board  in  case  the  vessel  has 
lost  her  belligerent  nationality  less  than  sixty  days  before  the 
opening  of  hostilities.    Proof  to  the  contrary  is  admitted. 

"There  is  absolute  presumption  of  the  validity  of  a  transfer 
effected  more  than  thirty  days  before  the  opening  of  hostilities 
if  it  is  absolute,  complete,  conforms  to  the  laws  of  the  coun- 
tries concerned,  and  if  its  eft'ect  is  such  that  the  control  of  the 
vessel  and  the  profits  of  her  employment  do  not  remain  in  the 
same  hands  as  before  the  transfer.  If,  however,  the  vessel 
lost  her  belligerent  nationality  less  than  sixty  days  before  the 
opening  of  hostilities,  and  if  the  bill  of  sale  is  not  on  board, 
the  capture  of  the  vessel  would  not  give  a  right  to  compensa- 
tion." 

In  general,  the  burden  of  proof  that  a  transfer  made  before 
the  war  is  not  valid  rests  upon  the  captor.  The  fact  that  the 
bill  of  sale  is  not  on  board,  in  case  of  transfers  made  less  than 
sixty  days  before  the  war,  is  presumptive  evidence  against 
the  validity  of  the  transfer,  and  justifies  capture.     "This  pre- 


§  184)  TREATMENT   OF    CAPTURED   VESSEL.  409 

sumption  may  be  rebutted,  though,  if  the  bill  of  sale  is  not  on 
board,  the  neutral  vessel  is  not  entitled  to  damages.  For 
transfers  made  more  than  thirty  days  before  the  outbreak  of 
hostilities,  evidence  that  the  transfer  is  made  in  order  to  evade 
the  consequences  of  war  is  not  considered,  if  the  transfer  is 
in  other  respects  shown  to  be  regular.  Even  for  transfers 
within  thirty  days  of  the  outbreak  of  hostilities,  the  burden  of 
proof  of  invalidity  rests  upon  the  captor. 

(2)  Transfers  after  War. — In  the  case  of  transfer  of  ves- 
sels to  a  neutral  flag  after  the  outbreak  of  hostilities,  the  bur- 
den of  proof  is  shifted  and  placed  upon  the  one  who  claims 
to  own  the  vessel.  There  are  certain  cases  specified  under 
which  transfer  is  always  regarded  as  invalid,  as  when  en  voy- 
age, in  a  blockaded  port,  conditional  or  not  legally  complete. 
In  other  cases  the  one  claiming  ownership  must  prove  that  the 
transfer  was  commercial,  rather  than  to  evade  the  consequen- 
ces to  which  a  belligerent  vessel  is  exposed  in  war.  The  rule 
is  as  follows : 

"Article  56.  The  transfer  of  an  enemy  vessel  to  a  neutral 
flag,  effected  after  the  opening  of  hostilities,  is  void  unless  it 
is  proved  that  such  transfer  was  not  made  in  order  to  evade 
the  consequences  which  the  enemy  character  of  the  vessel 
would  involve. 

"There  is,  however,  absolute  presumption  that  a  transfer  is 
void: 

"(1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a 
blockaded  port. 

"(2)  If  there  is  a  right  of  redemption  or  of  revision. 

"(3)  If  the  requirements  upon  which  the  right  to  fly  the 
flag  depends  according  to  the  laws  of  the  country  of  the  flag 
hoisted  have  not  been  observed."  ^^ 


TREATMENT    OF   CAPTURED   VESSEI.. 

184.    WTien  a  belligerent  commander  has  decided  to  capture  a 
neutral    mercliant   vessel — 
(a)    He    should   show   his   intention   by   taking   possession    of 
the  vessel  by  a  prize  cvexv  or  otherwise. 

81  Declaration  of  Loudon,  1909,  c.  V,  Appendix,  p.  58S. 


410  VISIT   AND   SEARCH.  (Ch.  23 

(b)  He   slioiild   send    tlie   prize   in    as   good    condition  as   pos- 

sible, in  general,  to  the  nearest  prize  court  of  bis  bonie 
country.  Sequestration  is  proposed  by  the  Hague  Con- 
vention   of    1907. 

(c)  As  the  title  to  neutral   prize  does  not  pass  till  condem- 

nation, he  should  shonr  due  respect  to  persons  and  prop- 
erty on  board  the  prize. 

(a)  "To  constitute  in  law  a  capture,  some  act  should  be  done 
indicative  of  an  intention  to  seize  and  to  retain  as  prize ;  it  is 
sufficient  if  such  intention  is  fairly  to  be  inferred  from  the 
conduct  of  the  captor."  ^~ 

According  to  the  British  and  Japanese  rules:  "If  the  cap- 
tain of  the  man-of-war  decides  to  capture  a  vessel,  he  shall 
inform  her  master  of  the  reason,  and  shall  take  possession  of 
the  vessel  by  sending  one  officer  and  the  required  number  of 
petty  officers  and  men.  If  on  account  of  bad  weather  or  any 
other  cause  it  is  impossible  to  dispatch  these  officers  and  men, 
the  captain  of  the  man-of-war  shall  order  the  vessel  to  haul 
down  her  colors  and  to  steer  according  to  his  direction.  If  the 
vessel  does  not  obey  the  orders  of  the  captain  of  the  man-of- 
war,  he  may  take  any  measures  required  for  the  occasion."  -^ 

(b)  The  general  rule  is  that  the  prize  should  be  sent  in  the 
condition  at  the  time  of  capture,  if  possible,  to  the  nearest 
home  port  for  adjudication.  In  recent  years  nearly  all  neutral 
states  have  by  proclamation  closed  their  ports  to  the  entrance 
of  belligerent  vessels  with  prize.-*  The  Hague  Convention  of 
1907  Concerning  the  Rights  and  Duties  of  Neutral  Powers  in 
Naval  War  makes  the  following  provisions : 

"Article  XXI.  A  prize  may  onl^  be  brought  into  a  neutral 
port  on  account  of  unseaworthiness,  stress  of  weather,  or  want 
of  fuel  or  provisions. 

"It  must  leave  as  soon  as  the  ciicumstances  which  justified 
its  entry  are  at  an  end.  If  it  does  not,  the  neutral  power  must 
order  it  to  leave  at  once ;    should  it  fail  to  obey,  the  neutral 

2  2  The  Grotius,  9  Cranch,  368,  3  L.  Ed.  702. 

23  Japanese  Regulations  Governing  Captures  at  Sea,  March  7,  1904, 
LXVII;  British  Manual  Naval  Prize  Law,  No.  238. 

24  See  neutrality  proclamations.  Foreign  Relations  U.  S.,  1898,  pp. 
841-904  ;  Id.  1904,  14-35. 


§  1S4)  TREATMENT   OF    CAPTURED   VESSEL.  411 

])ower  must  employ  the  means  at  its  disposal  to  release  it  with 
its  officers  and  crew  and  to  intern  the  prize  crew. 

"Article  XXII.  A  neutral  power  must,  similarly,  release  a 
prize  brought  into  one  of  its  ports  under  circumstances  other 
than  those  referred  to  in  article  XXI. 

"Article  XXIII.  A  neutral  power  may  allow  prizes  to  en- 
ter its  ports  and  roadsteads,  whether  under  convoy  or  not, 
when  they  are  brought  there  to  be  sequestrated  pending-  the 
decision  of  a  prize  court.  It  may  have  the  prize  taken  to  an- 
other of  its  ports. 

"If  the  prize  is  convoyed  by  a  war  ship,  the  prize  crew  may 
go  on  board  the  convoying  ship. 

"If  the  prize  is  not  under  convoy,  the  prize  crew  are  left 
at  liberty." 

The  United  States  adhered  to  this  treaty,  reserving  and  ex- 
cluding article  XXIII.-^  There  is  much  difference  of  opinion 
as  to  the  expediency  of  returning  to  the  practice  of  sequestra- 
tion which  was  once  permitted.  The  great  change  in  means 
and  methods  of  maritime  commerce  has  made  capture  at  sea 
a  complicated  problem  involving  many  interests ;  e.  g.,  the 
capture  of  an  ocean  liner,  or  even  its  delay  for  visit  and 
search,  when  having  a  large  passenger  list,  varied  cargo, 
mails,  etc. 

(c)  The  prize  regulations  of  most  states  make  explicit  pro- 
vision for  the  treatment  of  captured  neutral  vessels  and  of 
the  persons  on  board.  Some  treaties  also  have  similar  provi- 
sions.-*^ The  commander  of  the  vessel  making  the  capture  is 
usually  held  responsible  for  the  treatment  of  the  prize.  Those 
on  board  are  not,  by  the  fact  of  capture  of  the  vessel,  prison- 

26  Appendix,  p.  567. 

26  "In  order  effectually  to  provide  for  the  security  of  the  citizens 
and  subjects  of  the  contracting  parties,  it  is  agreed  between  them 
that  all  commanders  of  ships  of  war  of  each  party,  respectively, 
shall  he  strictly  enjoined  to  forbear  from  doing  any  damage  to,  or 
committing  any  outrage  against,  the  citizens  or  subjects  of  the 
other,  or  against  their  vessels  or  property ;  and  if  the  said  com- 
manders shall  act  contrary  to  this  stipulation,  they  shall  be  severely 
punished,  and  made  answerable  in  their  persons  and  estates  for  the 
satisfaction  and  reparation  of  said  damages,  of  whatever  nature 
they  may  be."  Article  XX,  Treaty  between  United  States  and  Italy, 
Feb.  26,  1S71,  17  Stat.  8.j4. 


412  VISIT  AND  SEARCH.  (Ch.  23 

ers  of  war,  though  they  may  be  detained  as  witnesses.  They 
should  be  treated  with  consideration,  and  when  passengers  are 
on  board  these  should  be  delayed  as  little  as  possible. 

DESTRUCTION    OR   APPROPRIATION   OF   PROPERTY   AT 

SEA. 

185.    (a)    As  a  general  rule  captured  neutral  vefssels  should  not 
be  destroyed  before  adjudication. 

(b)  "As  an  exception,  a  neutral  vessel  tvhich  has  been  cap- 

tured by  a  belligerent  war  ship,  and  ^vhich  wrould  be 
liable  to  condemnation,  may  be  destroyed,"  if  the  send- 
ing in  for  adjudication  "xirould  involve  danger  to  the 
safety  of  the  waT  ship  or  to  the  success  of  the  opera- 
tions in  which  she  is  engaged  at  the  time." 

(c)  Captured  vessels  or  goods  are  sometimes,  after  appraisal 

and  before  adjudication,  appropriated  to  public  use. 

(d)  Vessels  or  goods  are   sometimes  similarly  treated  under 

the  exercise  of  the  right  of  angary. 

(a)  While  it  is  the  general  rule  that  captured  neutral  ves- 
sels should  not  be  destroyed  before  adjudication,  certain  reg- 
ulations issued  during  recent  years  have  in  their  wording 
made  no  distinction  as  to  the  nationality  of  vessels  liable  to 
destruction.  The  instructions  issued  by  the  United  States 
Navy  Department  in  1898  made  no  distinction: 

"If  there  are  controlling  reasons  why  vessels  may  not  be 
sent  in  for  adjudication,  as  unseaworthiness,  the  existence  of 
infectious  disease,  or  the  lack  of  a  prize  crew,  they  may  be  ap- 
praised and  sold ;  and  if  this  cannot  be  done  they  may  be  de- 
stroyed. The  imminent  danger  of  recapture  would  justify 
destruction,  if  there  was  no  doubt  that  the  vessel  was  good 
prize.  But,  in  all  such  cases,  all  the  papers  and  other  testi- 
mony should  be  sent  to  the  prize  court,  in  order  that  a  decree 
may  be  duly  entered."  ^^ 

The  destruction  of  a  neutral  ship  must  be  clearly  distin- 
guished from  the  destruction  of  a  belligerent  ship,  even  under 
the  principles  at  present  generally  accepted.    If  the  belligerent's 

27  General  Ordtr  492,  June  20,  1898.  No.  28.  Similar  instructions 
were  issued  by  Russia  and  Japan  in  1904,  though  the  Japanese  regu- 
lations of  1894  applied  to  "enemy's  vessels."  See  Takahashi,  Int. 
Law  during  Chino-Japanese  War,  p.  183. 


§  185)         DESTRUCTION,  ETC.,  OF    PROPEKTr   AT   SEA.  413 

vessel  is  good  prize,  it  may  be  lost  to  that  belligerent  from  the 
time  when  his  opponent  captures  it.  This  is  not  always  and 
necessarily  the  case,  because  it  may  be  recaptured,  or  a  court 
for  some  reason  may  not  condemn  the  vessel.  Such  vessels 
may  also  have  neutral  cargo,  which  may  be  in  no  way  involved 
in  the  hostilities.  The  principle  of  the  Declaration  of  Paris 
that  "neutral  goods,  with  the  exception  of  contraband  of  v>?ar, 
are  not  liable  to  capture  under  enemy's  flag,"  may  be  involved 
in  such  manner  as  to  make  great  caution  necessary  in  destroy- 
ing vessels  of  the  enemy  before  adjudication.  Much  greater 
care  should  be  taken  before  destroying  a  neutral  vessel  itself. 
Where  a  vessel  is  destroyed,  as  was  said  in  the  British  case 
of  The  Leucade,  "the  claimants  are,  as  against  the  captor,  en- 
titled to  costs  and  damages."  '^  By  treaty  provisions  in  some 
instances  more  severe  penalties  are  prescribed.  The  question 
of  destruction  of  vessels  before  adjudication  was  brought  into 
prominence  in  the  Russo-Japanese  War  in  1904,  and  vigorous 
protests  were  made  against  Russian  action  in  destroying  neu- 
tral vessels.^ °     There  is  much  difference  of  opinion   among 

2  8  Spinks,  217. 

2  9  British  Parliamentary  Papers,  Russia,  No.  1  (190.5) ;  Foreign 
Relations  U.  S.,  1904,  p.  734;  Hershey,  Int.  Law  and  Diplomacy  dur- 
ing Russo-Japanese  War,  p.  136;  Lawrence,  War  and  Neutrality  in 
the  Far  East,  p.  250 ;  Smith  &  Sibley,  Int.  Law  during  Russo-Japan- 
ese War,  pp.  186,  465;  Takahashi,  Int.  Law  during  Russo-Japanese 
War,  p.  310 ;  Int.  Law  Situations,  U.  S.  Naval  War  College,  1905,  p.  62. 

The  Russian  regulations  in  regard  to  destruction  were: 

"40.  In  the  following  and  other  similar  extraordinary  cases  the 
commander  of  the  imperial  cruiser  has  the  right  to  burn  or  sink 
a  detained  vessel  after  having  previously  taken  therefrom  the  crew, 
and,  as  far  as  possible,  all  or  part  of  the  cargo  thereon,  as  well  as 
all  documents  and  objects  that  may  be  essential  in  elucidating  the 
matter  in  the  prize  court: 

"(1)  When  it  is  impossible  to  preserve  the  detained  vessel  on  ac- 
count of  its  bad  condition. 

"(2)  T\Tien  the  danger  is  imminent  that  the  vessel  will  be  recaptur- 
ed by  the  enemy. 

"(3)  When  the  detained  vessel  is  of  extremely  little  value,  and  its 
conduct  into  port  requires  too  much  waste  of  time  and  coal. 

"(4)  When  the  conducting  of  the  vessel  into  port  appears  difficult, 
owing  to  the  remoteness  of  the  port  or  a  blockade  thereof. 

"(5)  When  the  conducting  of  the  detained  vessel  might  interfere 


414  VISIT   AXD   SEARCH.  (Oil.  23 

writers  as  to  the  propriety  of  the  destruction  of  prize  before 
adjudication.^"  This  difference  of  opinion  was  also  evident 
at  the  Hague  Conference  in  1907. 

The  Declaration  of  London  in  1907  provided: 

"Article  48.  A  captured  neutral  vessel  may  not  be  destroy- 
ed by  the  captor,  but  must  be  taken  into  such  port  as  is  proper 
in  order  to  determine  there  the  rights  as  regards  the  validity  of 
the  capture." 

(b)  The  same  Declaration  provided  that : 

"Article  49.  As  an  exception,  a  neutral  vessel,  captured  by 
a  belligerent  ship,  and  which  would  be  liable  to  condemnation, 
may  be  destroyed  if  the  observance  of  article  48  would  involve 
danger  to  the  safety  of  the  ship  of  war  or  to  the  success  of 
the  operations  in  which  she  is  at  the  time  engaged." 

To  guard  against  arbitrary  destruction  of  neutral  vessels, 
the  Declaration  of  London  also  provides  that  the  one  who 
has  carried  out  the  destruction  must  prove  the  existence  of 
"exceptional  necessity"  before  the  question  of  whether  the 
vessel  would  be  good  prize  is  opened.  If  he  cannot  prove  "ex- 
ceptional necessity"  he  must  compensate  the  parties  interested 

with  the  success  of  the  naval  war  operations  of  the  imperial  cruiser 
or  threaten  it  with  danger. 

"The  officer  prepares  a  memorandum  imder  his  signature  and  that 
of  all  the  officers  concerning  the  circumstances  which  have  led  him 
to  destroy  the  detained  vessel,  which  memorandum  he  transmits  to 
the  authorities  at  the  earliest  possible  moment. 

"Note. — Although  article  21  of  the  Regulations  on  Maritime  Prizes 
of  1S95  permits  a  detained  vessel  to  be  burned  or  sunk  'on  the  per- 
sonal responsibility  of  the  commander,'  nevertheless  the  latter  by  no 
means  assumes  such  responsibility  when  the  detained  vessel  is  actual- 
ly subject  to  confiscation  as  a  prize,  and  the  extraordinary  circum- 
stances in  which  the  imperial  vessel  finds  itself  absolutely  demand 
the  destruction  of  the  detained  vessel. 

"41.  If  the  detained  vessel  subject  to  destruction  on  the  basis  or 
the  foregoing  article  is  found  to  be  better  than  the  imperial  vessel, 
owing  to  its  condition  or  its  seagoing  qualities,  the  commander  has 
the  right  to  substitute  the  prize  for  his  own  vessel  and  burn  or  sink 
the  latter."    Foreign  Relations  U.  S..  1904.  p.  7u2. 

To  these  a  supplementary  order  was  added  on  August  5,  1905: 

"Russian  vessels  were  not  to  sink  neutral  merchantmen  with  con- 
traband on  board  in  the  future,  except  in  case  of  direst  necessity, 
but  in  cases  of  emergency  to  send  prizes  into  neutral  ports." 

80  Kleen.  2  La  Neutralite.  531. 


§  185  DESTRUCTION,  ETC.,  OF   PKOPERTY    AT   SEA.  415 

without  further  proceeding-s,  as  the  question  of  vahdity  of  the 
prize  is  not,  in  case  of  destruction,  before  the  court,  unless 
"exceptional  necessity"  is  first  proven. 

Even  if  "exceptional  necessity"  is  proven,  the  entire  ques- 
tion of  validity  of  the  capture  is  still  to  be  settled  in  the  usual 
manner.  If  the  capture  is  declared  good,  no  compensation  is 
due  the  parties  interested;  if  the  capture  is  declared  void,  the 
parties  interested  have  full  right  to  compensation. 

If  innocent  neutral  goods  have  been  destroyed  with  a  neu- 
tral vessel,  the  owner  is  entitled  to  compensation. 

(c)  Laws  and  regulations  provide  for  the  appropriation  be- 
fore adjudication  of  vessels  captured  as  prize  after  they  have 
been  properly  appraised. ^^ 

In  accordance  with  article  40  of  the  Declaration  of  London : 

"The  confiscation  of  the  vessel  carrying  contraband  is  al- 
lowed if  the  contraband  forms,  either  by  value,  by  weight,  by 
volume,  or  by  freight,  more  than  half  the  cargo." 

In  accordance  with  article  44 : 

"A  vessel  stopped  because  carrying  contraband,  and  not  li- 
able to  condemnation  on  account  of  the  proportion  of  contra- 
band, may,  according  to  circumstances,  be  allowed  to  continue 
her  voyage  if  the  master  is  ready  to  deliver  the  contraband  to 
the  belligerent  ship. 

"The  delivery  of  the  contraband  is  to  be  entered  by  the 
captor  on  the  log  book  of  the  vessel  stopped,  and  the  master 
of  the  vessel  must  furnish  the  captor  duly  certified  copies  of 
all  relevant  papers. 

"The  captor  is  at  liberty  to  destroy  the  contraband  which  is 
thus  delivered  to  him." 

It  might  happen  that  the  master  of  a  merchant  vessel  would 
be  unwilling  to  hand  over  the  contraband  on  board,  and  that 
the  commander  of  the  belligerent  war  ship  would  not  be  in 

31  Perels,  Offentlicbe  Seerecbt,  §  55. 

Wlieuever  any  captured  vessel,  arms,  munitions,  or  other  material 
are  taken  for  the  use  of  the  United  States  before  it  comes  into  the 
custody  of  the  prize  court,  it  shall  be  surveyed,  appraised,  and  in- 
ventoried, by  persons  as  competent  and  impartial  as  can  be  obtain- 
ed, and  the  survey,  appraisement,  and  inventory  shall  be  sent  to  the 
court  in  which  proceedings  are  to  be  had.  Rev.  St.  §  4G24  (U.  S. 
Comp.  St.  1901,  p.  3130). 


416  VISIT   AND   SEARCH.  (Ch.  23 

position  to  take  the  neutral  vessel  to  port.  If  in  such  a  case 
the  belligerent  can  show  the  "exceptional  necessity"  which 
would  justify  the  destruction  of  the  vessel  if  it  were  liable  to 
condemnation,  he  may  demand  the  handing  over  of  the  goods 
liable  to  condemnation  or  proceed  himself  to  their  destruction. 
The  same  liabilities  rest  upon  the  belligerent  captor  as  v^hen 
destroying  a  neutral  vessel.  He  must  first  prove  ''exceptional 
necessity,"  failing  which  he  must  pay  compensation;  and,  hav- 
ing proved  "exceptional  necessity,"  he  must  then  prove  the  lia- 
bility of  the  goods  to  condemnation,  failing  which  he  must  pay 
compensation.^^ 

(d)  Formerly  belligerents,  under  the  right  of  angary,  com- 
pelled neutral  merchant  vessels  which  they  had  seized  to  ren- 
der service  for  them  in  transport  of  troops  or  otherwise. 
While  this  practice  has  been  discontinued,  neutral  property  has 
been  seized  for  military  use,  with  liability  to  full  indemnity.^* 

3  2  Appendix,  p.  5S0. 

33  Hall,  Int.  Law  (5th  Ed.)  pp.  736-739;  3  Phillim.  Int.  Law,  §  29; 
Blimtschli,  §  795  bis.  Mr.  Hall  recites  a  case  of  the  enforcing  of  this 
right  upon  neutral  property  passing  within  neutral  territory:  "Some 
English  vessels  were  seized  by  the  German  general  in  command  at 
Rouen,  and  sunk  in  the  Seine  at  Duclair,  in  order  to  prevent  French 
gunboats  from  running  up  the  river,  and  from  barring  the  German 
corps  operating  upon  its  two  banks  from  communication  with  each 
other.  The  German  commanders  appear  to  have  endeavored  in  the 
first  instance  to  make  an  agreement  with  the  captains  of  the  vessels 
to  sink  the  latter  after  payment  of  their  value,  and  after  taking  out 
their  cargoes.  The  captains  having  refused  to  enter  into  any  such 
agreement,  their  refusal  was,  by  a  strange  perversion  of  ideas,  'con- 
sidered to  be  an  infraction  of  neutralitj-,'  and  the  vessels  were  sunk 
by  the  unnecessarily  violent  method  of  firing  upon  them  while  some, 
at  least,  of  the  members  of  the  crews  appear  to  have  been  on  board. 
The  English  government  did  not  dispute  the  right  of  the  Germans  to 
act  in  a  general  sense  in  the  manner  which  they  had  adopted ;  and, 
notwithstanding  the  objectionable  details  of  their  conduct,  it  con- 
fined itself  to  a  demand  that  the  i)ersons  whose  property  had  been 
destroj-ed  should  receive  the  compensation  to  which  a  dispatch  of 
Count  Bismarck  had  already  admitted  their  right.  Count  Bismarck, 
on  his  side,  in  writing  upon  the  matter,  claimed  that  'the  measure  in 
question,  however  exceptional  in  its  nature,  did  not  overstep  the 
bounds  of  international  warlike  usage.'  But  he  evidently  felt  that 
the  violence  of  the  methods  adopted  needed  a  special  justification, 
for  he  went  on  to  say:     'The  report  shows  that  a  pressing  danger 


§  185)        DESTRUCTION,  ETC.,  OF    PROPERTY    AT   SEA.  417 

The  Hague  Convention  of  1907  provides  for  the  use  of  neu- 
tral railway  material  in  case  of  necessity,  with  liability  to  com- 
pensation.^* 

was  at  hand,  and  every  other  means  of  meeting  it  was  wanting. 
The  case  was,  therefore,  one  of  necessity,  which  even  in  time  of 
peace  may  render  the  employment  or  destruction  of  foreign  prop- 
erty admissible  under  the  reservation  of  indemnification.'  " 

3  4  "Article  XIX.  Railway  material  coming  from  the  territory  of 
neutral  powers,  whether  it  be  the  property  of  the  said  powers  or  of 
companies  or  private  persons,  and  recognizable  as  such,  shall  not  be 
requisitioned  or  utilized  by  a  belligerent  except  where  and  to  the  ex- 
tent that  it  is  absolutely  necessary.  It  shall  be  sent  back  as  soon 
as  possible  to  the  country  of  origin. 

"A  neutral  power  may  likewise,  in  case  of  necessity,  retain  and 
utilize  to  an  equal  extent  material  coming  from  the  territory  of  the 
belligerent  power. 

"Compensation  shall  be  paid  by  one  party  or  the  other  in  propor- 
tion to  the  material  used,  and  to  the  period  of  usage." 

Rights  and  Duties  of  Neutral  Powers  and  Persons  in  Case  of  War 
on  Land,  Appendix,  p.  548. 
Wils.Int.L. — 27 


418  CONTRABAND.  (Ch.  24 

CHAPTER  XXIV. 

CONTRABAND. 

186.  Contraband   Defiiierl. 

187.  Contraband    Classitiei 

188.  Liability  to  Seizure. 

189.  Penalty  for  Carriage. 

190.  Pre-emption. 

CONTRABAND   DEFINED. 

186.  Contraband  of  ivar  may  be  said  to  consist  of  those  arti- 
cles which  are  of  use  for  war,  and  -which,  Ttrhen  bonnd 
for  a  belligerent  destination,  are  liable  to  capture  and 
confiscation. 

It  has  been  usual  for  each  belHgerent  to  proclaim  in  public 
manner  what  articles  will  be  regarded  as  liable  to  seizure,  and 
these  are  regarded  as  contraband,  "contra  bandum."  ^  As  the 
idea  of  neutrality  as  at  present  understood  was  late  in  develop- 
ment, the  word  "contraband"  was  used  in  domestic  law  rather 
than  international  agreement.  The  term  does  not  occur  in 
early  codes,  like  "II  Consolato  del  ]\Iare,"  though  the  idea  was 
fairly  clear.  Grotius  does  not  in  1625  use  the  name  "contra- 
band," though  he  describes  the  articles.  There  is  mention  of 
contraband  in  a  treaty  between  England  and  Holland  in  that 
year.  Other  proclamations  of  the  same  period  enumerate 
"prohibited  articles  of  commerce."  Thus  there  was  an  at- 
tempt of  the  belligerents  to  impose  restrictions  upon  the  action 
of  other  states.  The  practice  led  to  great  diversity  in  the  lists 
of  articles  prohibited  by  the  different  states,  and  even  by  the 
same  state  at  different  times.  The  action  of  the  Armed  Neu- 
trality of  1780  tended  to  give  an  international  sanction  to  a 
list  of  contraband.  From  this  time  the  British  and  continental 
doctrines  in  regard  to  contraband  are  fairly  distinct.  The  con- 
tinental doctrine  has  tended  to  limit  the  list  broadly  to  muni- 
tions of  war,  while  the  British  tendency  has  been  toward  a 
more  inclusive  classification. 

1  3  Nys,  Droit  Int.  p.  640. 


§  186)  CONTRABAND    DEFINED.  419 

The  term  "contraband"  was  used  in  the  Declaration  of  Paris 
in  1856,  but  was  not  defined.  All  states  were  agreed  that,  in 
order  to  render  an  article  liable  to  capture  as  contraband,  two 
conditions  were  essential:  (1)  That  the  article  might  be  of 
use  for  war;  and  (2)  that  it  should  have  an  enemy  destina- 
tion. Thus  it  was  necessary  that  there  should  be  something-  in 
the  nature  of  the  article  and  in  its  destination  which  would 
make  it  of  use  for  warlike  purposes.  All  states  were  not 
agreed  as  to  just  what  articles  were  of  use  for  war,  or  as  to 
just  what  might  constitute  a  hostile  destination,  and  varying 
opinions  upon  these  points  were  given  in  the  courts  of  dif- 
ferent states.  This  uncertainty  gave  rise  to  much  friction  be- 
tween belligerents  and  neutrals,  and  was  often  the  cause  of 
grave  inconvenience,  great  disturbance  in  insurance  rates,  and 
loss  of  trade. 

It  is  to  the  interest  of  the  neutral  to  have  as  few  articles  as 
possible  proclaimed  contraband,  while  the  belligerent  may  de- 
sire to  extend  the  list.  It  had  been  proposed  that  the  states  of 
the  world  abandon  the  principle  of  contraband  altogether.^ 
The  Conference  at  The  Hague  in  1907  was  not  able  to  reach 


2  "With  regard  to  contraband,  many  most  difficult  questions  arose 
during  the  late  war.  These  cases  were  sufficient  to  show  that  the 
rules  with  regard  to  contraband  that  were  developed  at  the  end  of 
the  eighteenth  and  the  beginning  of  the  nineteenth  centuries  are  no 
longer  satisfactory  for  the  changed  conditions  under  which  both  com- 
merce and  war  are  now  carried  on.  His  ^Majesty's  government  recog- 
nize to  the  full  the  desirability  of  freeing  neutral  commerce  to  the 
utmost  extent  possible  from  interference  by  belligerent  powers,  and 
they  are  ready  and  willing  for  their  part,  in  lieu  of  endeavoring  to 
frame  new  and  more  satisfactory  rules  for  the  prevention  of  contra- 
band trade  in  the  future,  to  abandon  the  principle  of  contraband  of 
war  altogether,  thus  allowing  the  oversea  trade  in  neutral  vessels 
between  belligerents  on  the  one  hand  and  neutrals  on  the  other  to 
continue  during  war  without  any  restriction,  subject  only  to  its  ex- 
clusion by  blockade  from  an  enemy's  port.  They  are  convinced  that 
not  only  the  interest  of  Great  Britain,  but  the  common  interest  of 
all  nations,  will  be  found,  on  an  unbiased  examination  of  the  subject, 
to  be  served  by  the  adoption  of  the  course  suggested."  Sir  Edward 
Grey  to  Sir  Edward  Fry,  First  Plenipotentiary,  British  Parliamentary 
Papers,  Second  Peace  Conference  at  The  Hague,  1907,  Miscellaneous 
No.  1  (190S),  p.  25. 


420  CONTRABAND.  (Ch.  24 

that  conclusion,  and  the  settlement  of  the  question  was  post- 
poned to  a  subsequent  international  conference. 

The  matter  was  again  taken  up  for  discussion  at  the  In- 
ternational Naval  Conference  at  London  in  1908-09  and  an 
agreement  was  reached  by  the  ten  naval  powers  participating 
in  the  conference.  By  this  agreement,  as  set  forth  in  the  Dec- 
laration of  London,  division  is  made  into  (1)  articles  solely  of 
use  for  war,  as  armor  plates,  which  may  without  notice  be 
treated  as  absolute  contraband  and  become  liable  to  capture  if 
having  for  their  destination  a  place  within  the  jurisdiction  of 
the  enemy;  (2)  articles  of  use  in  war  or  peace  as  fuel,  whicli 
may,  without  notice,  as  conditional  contraband,  be  captured, 
if  bound  for  the  enemy's  authorities  or  armed  forces;  and  (3) 
articles  not  susceptible  of  use  in  v/ar,  as  agricultural  machin- 
ery, which  are  always  free  from  capture.  Such  an  agreement, 
while  not  depriving  the  belligerents  of  the  proper  belligerent 
right  to  prevent  the  supply  of  war  material  to  an  enemy,  re- 
moves from  commerce  the  uncertainties  which  arose  in  conse- 
quence of  the  former  possibility  that  either  belligerent  might 
arbitrarily  declare  a  list  of  contraband  or  add  to  a  list  already 
declared. 

CLASSIFICATION    OF    CONTRABAND. 

187.    Neutral  goods  destined  for  a  belligerent  may  be  classi- 
fied as: 

(a)  Absolute  contraband,  goods  particularly  of  use  for  xrar. 

(b)  Conditional  contraband,  goods  of  use  in  xnrar  or  in  peace. 

(c)  Free  goods,  goods  of  no  use  in  war. 

The  prohibition  by  one  belligerent  of  the  transportation  of 
certain  classes  of  goods  to  the  other  belligerent  was  an  early 
practice.  Examples  of  prohibitions  are  found  as  early  as  the 
time  of  Josephus.  A  proclamation  of  Edward  II  in  1315  enu- 
merates prohibited  articles  in  detail.  An  English  proclamation 
of  December  30,  1625,  the  year  of  the  issue  of  the  great  work 
of  Grotius,  "De  Jure  Belli  ad  Pacis,"  names  as  articles  in  which 
commerce  with  the  enemy  is  prohibited  "any  manner  of  graine, 
or  victualls,  or  any  manner  of  provisions  to  serve  to  build,  fur- 
nish, or  arme  any  shipps  of  warr,  or  any  kind  of  munition  for 
warr,  or  materials  for  the  same,  being  not  of  the  nature  of 


§  187)  CLASSIFICATION    OF   CONTRABAND.  421 

mere  merchandize."  The  lists  vary  greatly  in  different  periods 
and  under  different  circumstances. 

The  Anglo-American  and  Japanese  practice  has  in  general 
accorded  with  the  classification  of  Grotius.     He  enumerates : 

"1.  Those  things  which  have  their  sole  use  in  war,  such  as 
arms. 

"2.  Those  things  which  have  no  use  in  war,  as  articles  of 
luxury. 

"3.  Those  things  which  have  use  both  in  war  and  out  of 
war,  as  money,  provisions,  ships,  and  those  things  pertaining 
to  ships."  * 

This  may  be  illustrated  by  the  Japanese  order  of  February 
10,  1904: 

"The  following  articles  are  contraband  of  war  in  the  Russo- 
Japanese  War: 

"1.  The  following  articles  are  contraband  of  war  when 
they  pass  through,  or  are  destined  to,  the  enemy's  territory, 
or  to  the  enemy's  army  or  navy : 

"Arms,  ammunition,  explosives,  and  materials  (including 
also  lead,  saltpeter,  sulphur,  etc.),  and  machines  for  manufac- 
turing them,  cement,  uniforms  and  equipments  for  army  and 
navy,  armour  plates,  materials  for  building  ships  and  their 
equipments,  and  all  other  articles  to  be  used  solely  for  hostile 
purposes. 

"2.  The  following  articles  are  contraband  of  war  in  case 
they  are  destined  to  the  enemy's  army  or  navy,  or  in  case  they 
are  destined  to  the  enemy's  territory,  and  from  the  landing 
place  it  can  be  inferred  that  they  are  intended  for  military 
use: 

"Provisions  and  drinks,  clothing  and  materials  for  clothing, 
horses  and  harness,  fodder,  wheeled  vehicles,  coal  and  other 
kinds  of  fuel,  timber,  currency,  gold  and  silver  bullion,  and 
materials  for  telegraph,  telephone,  and  railroad  lines.  (The 
words  'clothing  and  materials  for  clothing'  and  'other  kinds 
of  fuel'  were  added  by  Order  No.  1  of  the  Navy  Department, 
of  the  38th  year  of  Meiji.) 

"3.  Of  the  articles  mentioned  in  the  above  two  clauses,  if 
it  is  clear  from  their  quality  and  quantity  that  they  are  intend- 

3  De  Jure  Belli  ac  Pads,  III,  1,  5. 


422  CONTRABAND.  (Ch.  24 

ed  for  the  vessel's  own  use,  such  articles  shall  not  be  consid- 
ered contraband  of  war."  * 

The  European  continental  practice  has  been  to  regard  goods 
as  contraband  or  noncontraband  according  to  their  nature. 

The  rules  of  February  14,  1901,  issued  by  Russia  contain 
a  full  list  of  such  articles: 

"6.  The  following  articles  are  deemed  to  be  contraband  of 
war: 

"(1)  Small  arms  of  every  kind,  and  guns,  mounted  or  in  sec- 
tions, as  well  as  armor  plates ; 

"(2)  Ammunition  for  firearms,  such  as  projectiles,  shell 
fuses,  bullets,  priming,  cartridges,  cartridge  cases,  powder, 
saltpeter,  sulphur ; 

"(3)  Explosives  and  materials  for  causing  explosions,  such 
as  torpedoes,  dynamite,  pyroxyline,  various  explosive  substan- 
ces, wire  conductors,  and  everything  used  to  explode  mines 
and  torpedoes; 

"(4)  Artillery,  engineering,  and  camp  equipment,  such  as 
gun  carriages,  ammunition  wagons,  boxes  or  packages  of  cart- 
ridges, field  kitchens  and  forges,  instrument  wagons,  pontoons, 
bridge  trestles,  barbed  wire,  harness,  etc. ; 

"(5)  Articles  of  military  equipment  and  clothing,  such  as 
bandoliers,  cartridge  boxes,  knapsacks,  straps,  cuirasses,  in- 
trenching tools,  drums,  pots  and  pans,  saddles,  harness,  com- 
pleted parts  of  military  uniforms,  tents,  etc. ; 

"(6)  Vessels  bound  for  an  enemy's  port,  even  if  under  a 
neutral  commercial  flag,  if  it  is  apparent  from  their  construc- 
tion, interior  fittings,  and  other  indications  that  they  have  been 
built  for  warlike  purposes,  and  are  proceeding  to  an  enemy's 
port  in  order  to  be  sold  or  handed  over  to  the  enemy ; 

"(7)  Boilers  and  every  kind  of  naval  machinery,  mounted 
or  unmounted ; 

"(8)  Every  kind  of  fuel,  such  as  coal,  naphtha,  alcohol,  and 
other  similar  materials ; 

*  Takahashi,  Int.  Law  Russo-Japanese  War,  p.  491. 

For  American  and  Spanish  lists  of  contraband  in  1S98,  see  Foreign 
Relations  U.  S.,  1898,  pp.  775,  782.  The  Spanish  list  accords  with 
European  practice,  while  the  American  list  is  divided  into  "abso- 
lutely contraband"  and  "conditionally  contraband." 


§  187)  CLASSIFICATION    OF    CONTRABAND.  423 

"(9)  Articles  and  materials  for  the  installation  of  tele- 
graphs, telephones,  or  for  the  construction  of  railroads; 

"(10)  Generally,  everything  intended  for  warfare  by  sea  or 
land,  as  well  as  rice,  provisions,  and  horses,  beasts  of  burden, 
and  other  animals,  which  may  be  used  for  a  warlike  purpose, 
if  they  are  transported  on  the  account  of,  or  are  destined  for, 
the  enemy. 

"7.  The  following  acts,  forbidden  to  neutrals,  are  assimilat- 
ed to  contraband  of  war :  The  transport  of  the  enemy's  troops, 
of  his  dispatches  and  correspondence,  the  supply  of  transports 
and  w'ar  ships  to  the  enemy.  Neutral  vessels  captured  in  the 
act  of  carrying  contraband  of  this  nature  may,  according  to 
circumstances,  be  seized  and  even  confiscated." 

Under  this  Russian  classification  many  articles  ordinarily 
regarded  as  conditional  contraband  in  Anglo-American  prac- 
tice were  included  in  the  list  of  absolute  contraband.  This  ac- 
tion called  forth  official  statements  in  opposition  to  such  inter- 
ference with  neutral  commerce.^ 


5  In  1901  there  was  an  exchange  of  views  on  the  subject  of  the 
declaration  of  Russia  between  the  governments  of  Great  Britain  and 
the  United  States. 

Mr.  Choate  to  Lord  Lansdowne: 

"American  Embassy,   London,  June  24,  1904. 

"My  Lord:  Referring  to  our  recent  interviews,  In  which  you  ex- 
pressed a  desire  to  know  the  views  of  my  government  as  to  the  order 
issued  by  the  Russian  government  on  the  28th  of  February  last,  'mak- 
ing every  kind  of  fuel,  such  as  coal,  naphtha,  alcohol,  and  other 
similar  materials,  unconditionally  contraband,'  I  am  now  able  to  state 
them  as  follows: 

"These  articles  enter  into  great  consumption  in  the  arts  of  peace, 
to  which  they  are  vitally  necessary.  They  are  usually  treated  not  as 
'absolutely  contraband  of  war,'  like  articles  that  are  intended  pri- 
marily for  military  purposes  in  time  of  war,  such  as  ordnance,  arms, 
ammunition,  etc.,  but  rather  as  'conditionally  contraband';  that  is  to 
say,  articles  that  may  be  used  for  or  converted  to  the  purposes  of  war 
or  peace  according  to  circumstances.  They  may  rather  be  classed 
with  provisions  and  foodstuffs  of  ordinarily  innocent  use,  but  which 
may  become  absolutely  contraband  of  war  when  actually  and  espe- 
cially destined  for  the  military  and  naval  forces  of  the  enemy.  *  *  * 
The  recognition  in  principle  of  the  treatment  of  coal  and  other  fuel 
and  raw  cotton  as  absolutely  contraband  of  war  might  ultimately  lead 
to  a  total  inhibition  of  the  sale  by  neutrals  to  the  people  of  belligerent 


424  CONTRABAND.  (Ch.  24 

Instead  of  the  term  "conditional  contraband,"  other  terms 
are  used,  such  as  "accidental  contraband,"  "occasional  contra- 
band," etc.  The  idea  is  the  same,  viz.,  that  the  conditions,  rath- 
er than  the  nature  of  the  thing  itself,  determine  its  liability  to 
capture. 

states  of  all  articles  which  could  be  finally  converted  to  military  uses. 
Such  an  extension  of  the  principle,  by  treating  coal  and  all  other  fuel 
and  raw  cotton  as  absolutely  contraband  of  war  simply  because  they 
are  shipped  by  a  neutral  to  a  nonblockaded  port  of  a  belligerent, 
would  not  appear  to  be  in  accord  with  the  reasonable  and  lawful 
rights  of  a  neutral  commerce. 

"I  shall  be  glad  to  receive  and  transmit  to  my  government  the  views 
of  His  Majesty's  government  on  the  same  question  as  soon  as  your 
lordship  shall  have  formulated  them. 

"I  have,  etc.,  Joseph  H.  Choate." 

Lord  Lansdowne  replied: 

"Foreign  Office,  July  29,   1904. 

"Your  Excellency:  I  have  the  honor  to  acknowledge  the  receipt  of 
your  note  of  the  24th  ultimo,  containing  the  views  of  the  United 
States  government  with  regard  to  the  Russian  regulations  of  the  2Sth 
February  last,  in  which  every  kind  of  fuel,  such  as  coal,  naphtha, 
alcohol,  and  other  similar  materials  is  declared  to  be  absolutely  and 
unconditionally  contraband  of  war. 

"I  have  the  honor  to  inform  your  excellency,  in  reply  to  your  re- 
quest to  be  furnished  with  the  views  of  His  Majesty's  government  on 
this  subject,  that  the  views  of  the  United  States  government,  as  ex- 
pressed in  your  excellency's  note,  are  generally  in  accord  with  those 
which  have  been  held  and  acted  upon  from  time  to  time  by  His 
Majesty's  government.  With  reference,  however,  to  the  statement 
made  in  paragraph  7  as  to  the  attitude  of  Great  Britain  in  1870  in  re- 
gard to  coal,  I  would  observe  that  Her  late  Majesty's  government  re- 
fused in  that  year  to  permit  vessels  to  sail  with  coal  to  the  French 
fleet,  not  merely  because  they  held  that  the  character  of  the  coal  de- 
pended upon  its  destination,  but  because  they  held  that  steamers  en- 
gaged to  take  out  cargoes  of  coal  to  the  French  fleet  in  the  North  Sea 
would  be  in  reality  acting  as  storeships  to  that  fleet. 

"It  is,  however,  right  that  I  should  add  that  in  the  altered  condi- 
tions of  modern  maritime  warfare  and  the  ever  increasing  importance 
of  the  part  played  therein  by  coal.  His  Majesty's  government  propose 
to  submit  the  whole  question  to  careful  and  exhaustive  examination 
at  an  early  date,  with  the  question  of  determining  whether  and  in 
what  respects  the  British  rules,  as  hitherto  acted  upon,  are  in  need 
of  revision. 

"In  these  circumstances  His  Majesty's  government  do  not  propose 
to  make  any  formal  protest  at  the  present  stage  against  the  Russian 


§  187)  CLASSIFICATION    OF    CONTRABAND,  425 

From  the  discussions  at  the  Hague  Conference  of  1907,  and 
from  the  opinions  of  recent  writers  upon  contraband,  it  was 
evident  that  the  whole  subject  of  classification  of  contraband 
was  in  a  very  unsatisfactory  state. 

The  International  Naval  Conference  at  London,  190S- 
09,    representing   both    the   Anglo-American    and    continental 

declaration  in  so  far  as  the  question  of  coal  is  concerned.  They  have, 
however,  ah'eady  entered  a  protest  against  the  treatment  of  foodstuffs 
as  absolutely  contraband,  and  they  have  pointed  out  that  they  ob- 
serve with  great  concern  that  rice  and  provisions  will  be  treated  as 
unconditionally  contraband,  a  step  which  they  regard  as  inconsistent 
with  the  law  and  practice  of  nations. 

"In  that  protest  it  was  stated  that  His  Majesty's  government  does 
not  contest  that  in  particular  circumstances  provisions  may  acquire  a 
contraband  character,  as,  for  instance,  if  they  should  be  consigned 
direct  to  the  army  or  fleet  of  a  belligerent,  or  to  a  port  where  such 
fleet  may  be  lying,  or  if  facts  should  exist  raising  the  presumption 
that  they  are  about  to  be  employed  in  victualing  the  fleet  or  forces 
of  the  enemy.  In  such  cases  it  is  not  denied  that  the  other  belligerent 
would  be  entitled  to  seize  the  provisions  as  contraband  of  war,  on 
the  ground  that  they  would  afford  material  assistance  toward  the 
carrying  on  of  warlike  operations. 

"They  could  not,  however,  admit  that  if  such  provisions  were  con- 
signed to  the  port  of  a  belligerent  (even  though  it  should  be  a  port  of 
naval  equipment)  they  must,  on  that  ground  alone,  be  of  necessity 
regarded  as  contraband  of  war. 

"In  the  view  of  His  Majesty's  government  the  test  appeared  to  be 
whether  there  are  circumstances  relating  to  any  particular  cargo  to 
show  that  it  is  destined  for  military  or  naval  use. 

"His  Majesty's  government  further  pointed  out  that  the  decision  of 
the  prize  court  of  the  captor  in  such  matters,  in  order  to  be  binding  on 
neutral  states,  must  be  in  accordance  with  recognized  rules  and  prin- 
ciples of  international  law  and  procedure. 

"They  therefore  felt  themselves  bound  to  reserve  their  rights  by 
protesting  at  once  against  the  doctrine  that  it  is  for  the  belligerent 
to  decide  that  certain  articles  or  classes  of  articles  are,  as  a  matter 
of  course  and  without  reference  to  the  considerations  above  referred 
to,  to  be  dealt  with  as  contraband  of  war  regardless  of  the  well-es- 
tablished rights  of  neutrals ;  nor  Avould  they  consider  themselves 
bound  to  recognize  as  valid  the  decision  of  any  prize  court  which 
violated  these  rights,  or. was  otherwise  not  in  conformity  with  the 
recognized  principles  of  international  law. 

"I  have,  etc.,  Landsdowne." 

Foreign  Relations  U.  S.,  1904,  p.  334. 

A  communication  had  been  sent  by  Secretary  Hay  on  June  10,  1004, 
to  the  ambassadors  of  the  United  States  in  Europe,  containing  a  full 


426  CONTHABAXD.  (Ch.  24 

practice,  gave  much  consideration  to  the  siihject  of  classifica- 
tion of  contraband.®  The  result  of  the  deliberations  as  em- 
bodied in  the  Declaration  of  London,  1909,  in  effect  divides 
goods  into  three  classes :  (1)  Absolute  contraband ;  (2)  con- 
ditional contraband ;  and  (3)  free  goods. 

(a)  The  formulated  list  of  absolute  contraband,  when  des- 
tined for  a  place  within  enemy  jurisdiction,  is  that  which  was 
drawn  up  at  the  Second  Hague  Conference  in  1907,  and  is 
stated  as  follows : 

"Article  22.  The  following  articles  and  materials  are,  with- 
out notice,  regarded  as  contraband,  under  the  name  of  abso- 
lute contraband : 

"(1)  Arms  of  all  kinds,  including  arms  for  sporting  pur- 
poses, and  their  unassembled  distinctive  parts. 

"(2)  Projectiles,  charges,  and  cartridges  of  all  kinds,  and 
their  unassembled  distinctive  parts. 

"(3)  Powder  and  explosives  specially  adapted  for  use  m 
war. 

statement  of  the  attitude  of  the  United  States  in  regard  to  neutral 
commerce  in  articles  conditionally  contraband  of  war.  Foreign  Rela- 
tions U.  S.,  1904,  p.  3. 

Russia  later,  in  response  to  requests,  interpreted  a  part  of  article 
€  as  follows: 

"In  consequence  of  doubts  which  have  arisen  as  to  the  Interpreta- 
tion of  article  6,  section  10,  of  the  Regulations  Respecting  Contra- 
band of  War,  it  has  been  resolved  by  the  Imperial  Government  that 
the  articles  capable  of  serving  for  a  warlike  object,  and  not  specified 
in  sections  1  to  9  of  article  6,  as  well  as  rice  and  foodstuffs,  shall 
be  considered  as  contraband  of  war,  if  they  are  destined  for^ 

"The  government  of  the  belligerent  power; 

"For  its  administration; 

"For  its  army ; 

"For  its  navy ; 

"For  its  fortresses; 

"For  its  naval  ports ;  or 

"For  its  purveyors. 

"In  cases  where  they  are  addressed  to  private  individuals  these 
articles  shall  not  be  considered  as  contraband  of  war. 

"In  all  cases  horses  and  beasts  of  burden  shall  be  considered  as  con- 
traband of  war." 

British  Parliamentary  Papers,  Russia,  No.  1  (100.5),  p.  27. 

8  British  Parliamentary  Papers,  Miscellaneous  No.  5  (19UU),  Pro- 
ceedings of  the  International  Naval  Conference. 


§  187)  CLASSIFICATION    OF   CONTRABAND.  427 

"(4)  Gun  carriages,  caissons,  limbers,  military  wagons,  field 
forges,  and  their  unassembled  distinctive  parts. 

"(5)  Clothing  and  equipment  of  a  distinctively  military 
■character. 

"(6)  All  kinds  of  harness  of  a  distinctively  military  char- 
acter. 

"(7)  Saddle,  draught,  and  pack  animals  suitable  for  use  in 
war. 

"(8)  Articles  of  camp  equipment  and  their  unassembled  dis- 
tinctive part. 

"(9)  Armor  plates. 

"(10)  Warships  and  boats  and  their  unassembled  parts  spe- 
cially distinctive  as  only  suitable  for  use  in  a  vessel  of  war. 

"(11)  Implements  and  apparatus  made  exclusively  for  the 
manufacture  of  munitions  of  war,  for  the  manufacture  or  re- 
pair of  arms  or  of  military  material,  for  use  on  land  or  sea."  '' 

It  is  also  provided,  in  order  to  meet  new  conditions,  that  ad- 
ditions to  the  above  list  may  be  made  in  a  regular  manner : 

"Article  23.  Articles  and  materials  which  are  exclusively 
used  for  war  may  be  added  to  the  list  of  absolute  contraband 
by  means  of  a  notified  declaration. 

"The  notification  is  addressed  to  the  governments  of  other 
powers,  or  to  their  representatives  accredited  to  the  power 
which  makes  the  declaration.  A  notification  made  after  the 
■opening  of  hostilities  is  addressed  only  to  neutral  powers." 

(b)  A  list  of  conditional  contraband,  liable  to  treatment  as 
'Contraband  when  destined  for  the  enemy  forces  or  authorities, 
was  agreed  upon  as  follows: 

"Article  24.  The  following  articles  and  materials,  sus- 
ceptible of  use  in  war  as  well  as  for  purposes  of  peace,  are, 
without  notice,  regarded  as  contraband  of  war,  under  the 
name  of  'conditional  contraband': 

"(1)  Foodstuffs. 

"(2)  Forage  and  grain  suitable  for  feeding  animals. 

7  There  has  been  much  difference  of  opinion  as  to  the  propriety  of 
including  "saddle,  draught,  and  pack  animals"  in  the  list  of  abso- 
lute contraband.  This  was  shown  both  at  the  Hague  Conference  in 
1907  and  at  the  Loudon  Conference  in  1908-09.  The  practice  of  dif- 
ferent states  in  regard  to  inclusion  had  also  varied. 


428  CONTRABAND.  (Cll.  24 

"(3)  Clothing-,  and  fabrics  for  clothing,  and  boots  and 
shoes,  suitable  for  military  use. 

"(4)  Gold  and  silver  in  coin  or  bullion  ;  paper  money. 

"(5)  Vehicles  of  all  kinds  available  for  use  in  war,  and  their 
unassembled  parts. 

"(6)  Vessels,  craft,  and  boats  of  all  kinds,  floating  docks, 
parts  of  docks,  as  also  their  unassembled  parts. 

"(7)  Fixed  railway  material  and  rolling  stock,  and  material 
for  telegraphs,  radio-telegraphs,  and  telephones. 

"(8)  Balloons  and  flying  machines  and  their  unassembled 
distinctive  parts,  as  also  their  accessories,  articles  and  mate- 
rials distinctive  as  intended  for  use  in  connection  with  balloons 
and  flying  machines. 

"(9)  Fuel;   lubricants. 

"(10)  Powder  and  explosives  not  specially  adapted  for  use 
in  war. 

"(11)  Barbed  wire,  as  also  implements  for  placing  and  cut- 
ting the  same. 

"(12)  Horseshoes  and  horseshoeing  materials. 

"(13)  Harness  and  saddlery  materials. 

"(14)  Binocular"  glasses,  telescopes,  chronometers,  and  all 
kinds  of  nautical  instruments." 

Provision  for  addition  to  the  list  was  also  made : 

"Article  25.  Articles  and  materials  susceptible  of  use  in 
war,  as  well  as  for  purposes  of  peace,  and  other  than  those 
enumerated  in  articles  22  and  24,  may  be  added  to  the  list  of 
conditional  contraband  by  means  of  a  declaration,  which  must 
be  notified  in  the  manner  provided  for  in  the  second  paragraph 
of  article  23." 

A  state  might  also  waive  its  right  to  treat  certain  articles 
as  contraband  under  article  26,  if  it  makes  known  its  inten- 
tion by  a  notified  declaration  in  accord  with  the  second  para- 
graph of  article  23. 

(c)  The  declaration  also  provides  in  article  27  that  articles 
which  are  not  susceptible  of  use  in  war  may  not  be  declared 
contraband.     It  further  enumerates  a  specific  free  list : 

"Article  28.  The  following  are  not  to  be  declared  contra- 
band of  war: 

"(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other 
raw  materials  of  the  textile  industries,  and  yarns  of  the  same. 


§    187)  CLASSIFICATION    OF   COKTRAKAND.  429 

"(2)  Nuts  and  oil  seeds ;   copra. 

"(3)  Rubber,  resins,  gums,  and  lacs ;  hops. 

"(4)  Raw  hides  and  horns,  bones,  and  ivory. 

"(5)  Natural  and  artificial  manures,  including  nitrates  and 
phosphates  for  agricultural  purposes. 

"(6)  Metallic  ores. 

"(7)  Earths,  clays,  lime,  chalk,  stone,  including  marble, 
bricks,  slates,  and  tiles. 

"(8)  Chinaware  and  glass. 

"(9)  Paper  and  materials  prepared  for  its  manufacture. 

"(10)  Soap,  paint  and  colours,  including  articles  exclusively 
used  in  their  manufacture,  and  varnishes. 

"(11)  Bleaching  powder,  soda  ash,  caustic  soda,  salt  cake, 
ammonia,  sulphate  of  ammonia,  and  sulphate  of  copper. 

"(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

"(13)  Precious  stones,  semi-precious  stones,  pearls,  mother- 
of-pearl,  and  coral. 

"(14)  Clocks  and  watches,  other  than  chronometers. 

"(15)  Fashion  and  fancy  goods. 

"(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

"(17)  Articles  of  household  furniture  and  decoration;  of- 
fice furniture  and  accessories. 

"Article  29.  Neither  are  the  following  to  be  regarded  as 
contraband  of  war : 

"(1)  Articles  and  materials  serving  exclusively  for  the  care 
of  the  sick  and  wounded.  They  can,  nevertheless,  in  case  of 
urgent  military  necessity  and  subject  to  the  payment  of  com- 
pensation, be  requisitioned,  if  their  destination  is  that  speci- 
fied in  article  30. 

"(2)  Articles  and  materials  intended  for  the  use  of  the  ves- 
sel in  which  they  are  found,  as  well  as  those  intended  for  the 
use  of  her  crew  and  passengers  during  the  voyage."  * 

While  previously  states  have  enumerated  in  treaties  what 
articles  they  would  regard  as  contraband  in  case  of  war  be- 
tween them,  the  Declaration  of  London  of  February  26,  1909, 
is  the  first  agreement  among  any  considerable  number  of  states 
upon  a  full  classification.     It  may  be  assumed  that  ten  naval 

8  For  full  report  of  proceedings  of  London  Naval  (Conference,  see 
British  Parliamentary  Papers,  Miscellaneous,  Nos.  4  and  5  (1901)). 


430  CONTRABAND.  (Ch.  24 

powers  would  in  reaching  such  an  agreement  give  due  weight 
to  their  interests  both  as  possible  belligerents  and  as  possible 
neutrals.  The  placing  in  a  specific  free  list  of  certain  articles, 
such  as  raw  cotton,  of  which  a  small  amount  might  be  used  in 
the  manufacture  of  explosives  or  for  other  uses  in  war,  re- 
moves the  source  of  great  possible  disturbances  to  legitimate 
trade. 

LIABILITY  OF  CONTRABAND   TO   SEIZURE. 

188.    Outside  of  neutral  waters — 

(a)  Absolute   contraband  is  liable  to  seizure,  if  destined  to 

belligerent  territory  or  to  belligerent  use. 

(b)  Conditional   contraband  is  liable  to   seizure,  if  destined 

for  the  military  or  naval  forces  of  the  enemy,  or  to  the 
authorities  of  an  enemy  state,  and  on  board  a  vessel 
bound  for  such  destination. 

Any  act  of  war,  like  the  seizure  of  contraband,  would  be 
prohibited  in  neutral  waters.  Outside  of  neutral  waters,  con- 
traband having  an  enemy  destination  is  liable  to  seizure  under 
the  neutral  flag,  which  would  in  ordinary  conditions  be  an  evi- 
dence of  neutral  jurisdiction.  It  was  considered  that  the  sale 
and  carriage  of  war  material  between  neutrals,  even  in  the 
time  of  war,  was  an  entirely  innocent  transaction.  That  desti- 
nation was  an  essential  fact  in  making  goods  of  the  nature  of 
contraband  liable  to  seizure  was  early  recognized  in  practice, 
treaties,  proclamations,  etc.  A  provision  in  regard  to  hostile 
destination  was  inserted  in  a  treaty  between  Great  Britain  and 
France  in  1303,  and  earlier  records  show  that  the  destination 
was  as  important  as  the  nature  of  the  goods.  As  was  said  in 
a  decision  of  the  United  States  Supreme  Court  in  1816  in  re- 
gard to  a  cargo  of  provisions :  "By  the  modern  law  of  na- 
tions provisions  are  not,  in  general,  deemed  contraband ;  but 
they  may  become  so,  although  the  property  of  a  neutral,  on 
account  of  the  particular  situation  of  the  war  or  on  account 
of  their  destination.  If  destined  for  the  ordinary  use  of  life 
in  the  enemy's  country,  they  are  not,  in  general,  contraband ; 
but  it  is  otherwise  if  destined  for  military  use.  Hence,  if  des- 
tined for  the  army  or  navy  of  the  enemy,  or  for  his  ports  of 
naval  or  military  equipment,  they  are  deemed  contraband."  " 

8  The  Commercen,  1  Wheat.  382,  4  L.  E<J.  116. 


§  188)  LIABILITY    OF   CONTRABAND    TO    SEIZURE.  431 

Therefore  the  destination  becomes  a  deciding  factor  in  de- 
termining whether  the  whole  or  a  part  of  a  cargo  on  a  neutral 
vessel  may  be  seized.  The  destination  to  justify  seizure  must 
be  such  as  would  be  a  direct  aid  to  the  enemy  in  prosecuting 
war. 

In  general,  it  was  held  that  there  would  be  sufficient  evidence 
that  arms  or  other  absolute  contraband  bound  for  the  territory 
of  an  enemy  would  directly  aid  the  enemy  and  that  they  should 
therefore  be  liable  to  seizure.^" 

While  in  case  of  provisions  or  other  conditional  contraband, 
which  are  of  use  alike  to  the  population  at  large  of  the  enemy's 
country  and  to  the  military  forces,  the  destination  for  mil- 
itary use  must  be  established  in  order  to  render  them  liable  to 
seizure.^^ 

The  Declaration  of  London,  1909,  endeavored  to  make  more 
definite  the  regulations  relating  to  destination. 

(a)  This  Declaration  (article  30)  makes  absolute  contra- 
band liable  to  seizure  if  it  is  shown  to  have  a  final  destination 
to  the  territory  of  the  enemy  or  to  his  armed  forces.  This 
liability  exists,  regardless  of  the  destination  of  the  vessel  upon 
which  the  absolute  contraband  may  be  found. 

(b)  By  this  Declaration  conditional  contraband  is  liable  to 
capture,  if  destined  for  the  armed  forces  or  for  a  government 
department  of  the  enemy  state,  unless  the  circumstances  show 
that  goods  destined  for  a  government  department  of  an  enemy 
state  cannot  be  used  for  the  purposes  of  the  war  in  progress. 
This  exception  was  introduced  to  provide  for  cases  where  a 
war  is  localized.  As  is  said  in  the  report  of  the  International 
Naval  Conference:  "For  instance,  there  is  a  war  in  Europe, 
and  the  colonies  of  the  belligerent  countries  are  not  in  fact,  af- 
fected by  it.  Foodstuffs  or  other  articles  in  the  list  of  condi- 
tional contraband,  destined  for  the  use  of  the  civil  government 
of  a  colony,  would  not  be  held  to  be  contraband  of  war,  be- 
cause the  considerations  adduced  above  do  not  apply  to  their 
case.  The  resources  of  the  civil  government  cannot  be  drawn 
on  for  the  needs  of  the  war.     Gold,  silver,  or  paper  money 

10  The  Santissima  Trinidad,  7  Wheat.  283,  5  L.  Ed.  454. 

11  The  Commercen,  1  Wheat.  3S2,  4  L.  Ed.  116. 


432  CONTRABAND.  (Ch.  24 

are  exceptions,  because  a  sum  of  money  can  easily  be  sent 
from  one  end  of  the  world  to  the  other."  ^- 

Conditional  contraband,  bound  to  be  dischar,2:ed  in  a  neutral 
port,  whatever  its  ultimate  destination,  is  not  liable  to  capture 
according  to  the  Declaration  of  London,  except  in  the  rare 
case,  when  conditional  contraband  is  bound  to  be  discharged 
at  a  neutral  port  with  the  intent  to  transport  it  thence  to  a 
belligerent  state  which  has  no  seaboard.  Swch  a  case  arose 
during  the  South  African  War  in  1900,  when  vessels  carried 
contraband  to  the  neutral  Portuguese  port  of  Lorenzo  Mar- 
ques in  Delagoa  Bay,  thence  to  be  transported  overland  to  the 
South  African  forces. ^^ 


PENALTY  FOR  CARRYING  CONTRABAND. 

189.  AVlxile,  in  general,  contraband  is  liable  to  condemnation, 
the  further  penalty  for  the  carriage  of  contraband  de- 
pends upon  the  relation  of  the  carrier  to  the  contra- 
band. 

(a)  The  penalties  have  not  been  the  same  in  different  states. 

The  Anglo-American  rules  -were  in  general  that: 

(1)  When  the  vessel  and  contraband  belonged  to  differ- 

ent OTvners,  the  vessel  Avas  liable  to  loss  of  freight 
upon  the  contraband  cargo  and  to  loss  of  time  and 
expenses   during    adjudication. 

(2)  When  vessel  and  contraband   cargo  belonged   to   the 

same    oii^ner,    both   might   be   forfeited. 

(3)  WTien   a   part    of   the   vessel    belonged   to    the   onrner 

of  the  contraband  cargo,  that  part  might  be  con- 
demned. 

(4)  Noncontraband  goods  belonging  to  the  owner  of  the 

contraband  might  be  condemned. 

(5)  Fraudulent    or    other    irregular    acts    might    make    a 

vessel  carrying  contraband  liable  to  penalty. 

(b)  The  Declaration  of  London  in   1909  provided  that: 

(1>  'When  the  cargo,  reckoned  either  by  value,  \ireight, 
volume,  or  freight,  forms  more  than  half,  the  ves- 
sel may  be   condemned. 

(2)  W^hen  a  vessel  carrying  contraband  is  released,  she 
may  be  condemned  to  pay  costs  of  prize  court  pro- 
ceedings incurred  by  captor. 

"British  Parliamentary  Papers,  Miscellaneous,  No.  4  (lOOU),  p.  48. 
i»  Id.,  Africa,  No.  1  (1900). 


§  189  PENALTY    FOR    CARRYING    CONTRABAND.  433 

(3)  Other  goods  on  board  belonging  to  tlie  owner  of  the 

contraband   may   be   condemned. 

(4)  When   a  vessel   carrying   contraband   is    nnaxsrare    of 

the  existence  of  hostilities,  or  has  not  since  the  out- 
break of  hostilities  had  opportunity  to  discharge 
contraband,  the  contraband  is  liable  to  condemna- 
tion only  on  payment  of  compensation. 

(5)  When  the   proportion   of  contraband   on  a  vessel   is 

less  than  one-half  her  cargo,  she  may,  xirhen  cir- 
cumstances permit,  be  allo^ved  to  continue  her  voy- 
age, if  the  master  is  w^illing  to  hand  over  the  con- 
traband to  the  belligerent  virar  ship. 

The  carriage  of  contraband  is  not  forbidden  by  international 
law.  Belligerents  are,  however,  permitted  by  international 
law  to  inflict  penalties  upon  neutrals  who  engage  in  such  com- 
merce as  has  been  prohibited. 

The  liability  to  capture  begins  when  a  vessel  carrying  con- 
traband leaves  neutral  waters,  and  continues  till  the  contra- 
band is  delivered.  Liability  is  sometimes  held  to  continue  to 
the  completion  of  the  return  voyage,  in  case  of  fraud  on  the 
outward  voyage.^* 

Formerly  contraband  trade  was  penalized  by  forfeiture  of 
the  vessel  and  cargo. ^^  The  carrier  is  now  generally  allowed 
to  prove  his  innocence. 

(a)  Anglo-American  doctrine  was  to  the  effect  that : 

(1)  The  penalty  which  in  general  deters  neutral  carriers  is 
the  loss  of  freight  and  the  liability  to  detention.^'' 

(2)  When  the  vessel  and  contraband  cargo  belong  to  the 
same  person,  the  ship  and  cargo  are  joined  in  the  transaction, 
the  owner  cannot  plead  ignorance,  and  both  ship  and  cargo 
are  liable  to  condemnation. 

(3)  "Where  the  owner  of  the  cargo  has  any  interest  in  the 
ship,  the  whole  of  his  property  will  be  involved  in  the  same 
sentence  of  condemnation ;  for,  where  a  man  is  concerned 
in  an  illegal  transaction,  the  whole  of  his  property  embarked 
in  that  transaction  is  liable  to  confiscation."  " 

1*  The  Lucy,  37  Ct.  CI.  97. 

15  The  Med  Guds  Hielpe,  Pratt,  Contraband  of  War,  p.  101a. 

16  The  Ringende  Jacob,  1  C.  Rob.  89. 

17  The  Jange  Tobias,  1  C.  Rob.  329. 

WiLS.lNT.L.— 28 


434  CONTRABAND.  (Ch.  24 

(4)  The  principle  which  applies  to  the  situation  when  the 
owner  of  the  contraband  cargo  is  also  owner  of  the  vessel  ap- 
plies when  the  owner  of  the  contraband  cargo  is  also  owner 
of  noncontraband  cargo.  The  noncontraband  cargo  is  liable 
to  be  condemned.  It  is  difficult  to  reconcile  the  principle  that, 
"to  escape  from  the  contagion  of  contraband,  the  innocent  ar- 
ticles must  be  property  of  a  different  owner,"  ^^  with  the  Dec- 
laration of  Paris,  of  1856. 

(5)  The  penalty  for  fraudulent  or  other  irregular  acts  in 
connection  with  the  carriage  of  contraband  may  extend  to  the 
condemnation  of  the  vessel,^*  or  to  lesser  punishment  of  fine.-'* 

(b)  The  Declaration  of  London,  of  1909,  while  making  cer- 
tain new  rules,  and  reconciling  certain  differences  among  mari- 
time states,  also  revived  certain  earlier  practices,  which  were 
found  to  be  consistent  with  the  best  interests  of  belligerents 
and  neutrals. 

(1)  As  a  general  principle  the  neutral  carrier  of  contraband 
is  liable  to  the  delay  and  inconvenience  in  bringing  the  con- 
traband cargo  before  a  prize  court,  and  Hable  to  the  loss  of 
freight  upon  the  contraband.  Experience  has  shown  that, 
while  this  may  be  a  sufficient  penalty  in  cases  where  the  con- 
traband carried  is  of  relatively  small  amount  and  shipped  in 
the  regular  course  of  trade,  there  may  be  cases  where  the  car- 
rier of  the  contraband  should  be  more  severely  penalized,  par- 
ticularly in  cases  where  the  carriage  of  contraband  is  not 
simply  an  incident  in  the  undertaking,  but  the  main  object  of 
a  voyage.  Opinions  differed  as  to  the  method  of  determining 
what  should  constitute  sufficient  evidence  to  render  the  car- 
rier liable  to  a  severe  penalty.  The  report  of  the  London 
Naval  Conference  says :  "It  was  decided  that  the  contraband 
must  bear  a  certain  proportion  to  the  total  cargo.  But  the 
question  divides  itself  into  two  parts :  (1)  What  shall  be  the 
proportion?  The  solution  adopted  is  the  mean  between  those 
proposed,  which  varied  from  a  quarter  to  three  quarters.  (3) 
How  shall  this  proportion  be  reckoned  ?    Must  the  contraband 

18  The  Staadt  Embden,  1  C.  Rob.  26. 

i»The  Franklin,  3  C.  Rob.  217. 

20  The  Peterhoff,  5  Wall.  28,  18  L.  Ed.  5G4. 


§  189)     PENALTY  FOR  CARRYING  CONTRABAND.        435 

form  more  than  half  the  cargo  in  volume,  weight,  value,  or 
freight?  The  adoption  of  a  single  fixed  standard  gives  rise 
to  theoretical  objections,  and  also  to  practices  intended  to 
avoid  condemnation  of  the  vessel,  in  spite  of  the  importance 
of  the  cargo.  If  the  standard  of  volume  or  weight  is  adopted, 
the  master  will  ship  innocent  goods  occupying  space,  or  of 
weight,  sufficient  to  exceed  the  contraband.  A  similar  remark 
may  be  made  as  regards  the  standard  of  value  of  freight. 
The  consequence  is  that,  in  order  to  justify  condemnation,  it 
is  enough  that  the  contraband  should  form  more  than  half  the 
cargo  by  any  one  of  the  above  standards.  This  may  seem 
harsh ;  but,  on  the  one  hand,  any  other  system  would  make 
fraudulent  calculations  easy,  and,  on  the  other,  the  condemna- 
tion of  the  vessel  may  be  said  to  be  justified  when  the  car- 
riage of  contraband  formed  an  important  part  of  her  venture 
— a  statement  which  applies  to  all  the  cases  specified."  "^ 

(2)  It  was  recognized  that  it  might  be  unjust  to  condemn 
a  vessel  carrying  an  amount  of  contraband  more  than  one- 
half  its  cargo,  and  to  allow  a  vessel  carrying  an  amount  just 
below  one-half  its  cargo  to  go  free.  "A  kind  of  fine  was  pro- 
posed which  should  bear  a  relation  to  the  value  of  the  con- 
traband articles.  Objections  of  various  sorts  were  brought 
forward  against  this  proposal,  although  the  principle  of  the 
infliction  of  some  kind  of  pecuniary  loss  for  the  carriage  of 
contraband  seemed  justified.  The  same  object  was  attained  in 
another  way  by  providing  that  the  costs  and  expenses  incurred 
by  the  captor  in  respect  of  the  proceedings  in  the  national 
prize  court  and  of  the  custody  of  the  vessel  and  of  her  cargo 
during  the  proceedings  are  to  be  paid  by  the  vessel.  The  ex- 
penses of  the  custody  of  the  vessel  include  in  this  case  the  keep 
of  the  captured  vessel's  crew.  It  should  be  added  that  the 
loss  to  a  vessel  by  being  taken  to  a  prize  port  and  kept  there 
is  the  most  serious  deterrent  as  regards  the  carriage  of  con- 
traband." " 

(3)  The  generally  approved  rule:  "Article  42.  Goods 
which  belong  to  the  owner  of  the  contraband  and  which  are 

21  British  Parliamentary  Papers,  Miscellaneous,  No.  4  (1909),  p.  51. 

22  Id. 


436  CONTRABAND.  (Ch.  24 

on  board  the  same  vessel  are  liable  to  condemnation" — was 
reaffirmed. 

(4)  Such  penalties  should  not  extend  to  vessels  which  are 
not  in  intent  engaged  in  carrying"  contraband,  as  to  vessels 
which  are  at  sea  unaware  of  the  opening  of  hostilities,  or  to 
vessels  which  have  had  no  opportunity  to  discharge  contraband 
which  they  may  have  on  board.  At  the  same  time  it  would  not 
be  reasonable  to  expect  the  captor  to  permit  such  a  cargo  to  go 
on  to  his  enemy.  The  provision  is  therefore  made  that  in 
such  cases  the  contraband  may  be  condemned  subject  to  pay- 
ment of  compensation  (article  43).  The  innocent  shipper  and 
the  innocent  carrier  are  thus  secured  in  their  rights,  while  the 
belligerent  rights  of  the  captor  are  not  denied. 

(5)  Under  certain  circumstances  it  might  be  of  advantage 
to  both  the  neutral  carrier  of  contraband  and  the  belligerent 
war  ship  if  contraband  cargo  might  be  turned  over  to  the  bel- 
ligerent war  ship  without  the  necessity  of  bringing  it  before  a 
prize  court.  This  might  clearly  be  the  case  if  the  contraband 
on  board  a  large  neutral  vessel  were  small  in  amount.  To 
meet  cases  where  the  surrender  of  the  contraband  would  be 
advantageous  the  following  article  was  adopted : 

"Article  44.  A  vessel,  stopped  because  carrying  contra- 
band, and  not  liable  to  condemnation  on  account  of  the  propor- 
tion of  contraband,  may,  according  to  circumstances,  be  al- 
lowed to  continue  her  voyage  if  the  master  is  ready  to  deliver 
the  contraband  to  the  belligerent  ship. 

"The  delivery  of  the  contraband  is  to  be  entered  by  the 
captor  on  the  log  book  of  the  vessel  stopped,  and  the  master 
of  the  vessel  must  give  the  captor  duly  certified  copies  of  all 
rekvant  papers. 

"The  captor  is  at  liberty  to  destroy  the  contraband  which 
is  thus  delivered  to  him." 

This  is  not  a  new  principle.  It  is  contained  in  numerous 
treaties.  A  treaty  between  the  United  States  and  Sweden  in 
1783  (article  13)  provided  for  the  immediate  release  of  a  ves- 
sel when  "the  master  agrees,  consents,  and  ofifers"  to  deliver 
the  contraband  to  the  belligerent  commander.  Provisions 
somewhat  similar  occur  in  the  treaty  with  Prussia,  1799  (ar- 


§  190)  PRE-EMPTION.  437 

tide  XIII) ;  Brazil,  1828  (article  18) ;  Columbia,  1846  (article 
19) ;  Bolivia,  1858  (article  19) ;  Haiti,  1861  (article  23) ;  and 
in  other  treaties.  Some  of  these  treaties  provide  that,  if  the 
cargo  cannot  be  received  on  board  the  belligerent  vessel,  the 
neutral  vessel  must  be  sent  to  a  prize  court.  As  in  any  case 
the  goods,  v^hether  sent  in  or  destroyed,  may  be  made  the  sub- 
ject of  prize  court  proceedings,  it  would  seem  in  fact  to  make 
little  difference  what  disposition  the  belligerent  might  make  of 
them  after  they  were  handed  over  to  him.  The  belligerent 
may  therefore  take  the  articles  to  port,  use  the  articles,  or, 
if  their  preservation  unduly  hampers  his  movements,  he  may 
destroy  them.  The  responsibilty  of  the  neutral  master  ceases 
from  the  time  when  he  has  delivered  the  contraband  to  the 
belligerent  commander.  If  the  neutral  master  denies  the  con- 
traband nature  of  goods  of  which  the  surrender  is  requested 
by  the  belligerent,  the  neutral  master  may  hand  them  over,  and 
if  the  court  finds  the  master's  contention  correct  the  master 
may  obtain  compensation, 

PRE-EMPTION. 

190.  Under  the  doctrine  of  pre-emption,  goods  of  the  nature 
of  conditional  contraband  have  sometimes  been  inter- 
cepted by  a  belligerent  ^rhen  bound  for  an  enemy  des- 
tination and  paid  for  xpith  a  fair  profit. 

"In  strictness,  every  article  which  is  either  necessarily  con- 
traband, or  which  has  become  so  from  the  special  circumstan- 
ces of  the  war,  is  liable  to  confiscation ;  but  it  is  usual  for 
those  nations  who  vary  their  list  of  contraband  to  subject  the 
latter  class  to  pre-emption  only,  which  by  the  English  prac- 
tice means  purchase  of  the  merchandise  at  its  mercantile  val- 
ue, together  with  a  reasonable  profit,  usually  calculated  at  ten 
per  cent,  on  the  amount.  This  mitigation  of  extreme  belliger- 
ent privilege  is  also  introduced  in  the  case  of  products  native 
to  the  exporting  country,  even  when  they  are  affected  by  an 
inseparable  taint  of  contraband."  -^ 

States  not  favorable  to  the  doctrine  of  conditional  contra- 
band have  admitted  the  doctrine  of  pre-emption.     The  rules 

2  3  Hall,  Int.  Law  (5th  Ed.)  p.  GG5, 


438  CONTRABAND.  (Ch.  24 

of  the  Institute  of  International  Law  adopted  in  1896  provided 
for  pre-emption,  while  declaring-  the  abolition  of  conditional 
contraband.^* 

-*  "§  4.  Sout  et  demeurent  abolies  les  pretendues  contrebaudes  de- 
signees sous  les  noms  soit  de  contrebande  relative,  conceniant  des 
articles  (usus  ancipitis)  susceptibles  d'etre  utilises  par  un  belligerant 
daus  un  but  militaire,  mais  dont  I'usage  est  esseutielleruent  pacifique, 
soit  de  contrebande  accidentclle,  quaud  les  dits  articles  ne  serventsp<'- 
cialement  aux  buts  militaires  que  dans  une  circoiistance  particuliere. 

"§  5.  N§anmoins  le  belligerant  a,  S.  son  cboix  et  Sl  charge  d'une 
equitable  indemnity,  le  droit  de  sSquestre  ou  de  preemption  quant  aux 
objets  qui,  en  cbemiu  vers  un  port  de  sou  adversaire,  peuvent  egale- 
ment  servir  a,  I'usage  de  la  guerre  et  H  des  usages  pacifiques." 

XV  Annua  ire,  230. 


§  191)  BLOCKADE.  439 


CHAPTER  XXV. 

BLOCKADE. 

191.  Blockade  Defiued. 

192.  Places  That  may  be  Blockaded. 

193.  Establisliinent  of  a  Blockade. 

194.  Notification. 

195.  Vessels  in  Blockaded  Port. 
19G.  Maintenance. 

197.  Termination. 

198.  Violation. 

199.  Penalty  for  Violation. 

200.  Period  of  Inability  for  Violation. 

BLOCKADE  DEFINED. 

191.  Slockade  is  a  measure  of  ivar  by  'nrliicli  tlie  forces  of 
one  belligerent  obstruct  communication  ivitb  a  place 
or  port  of  tlie  enemy,  and  is,  in  general,  applied  to  tbe 
prevention  of  communication  by  xirater. 

Blockade  is  a  measure  of  war  aimed  at  an  enemy,  though 
to  a  large  degree  afifecting  neutrals. 

"Blockade  is  to  close  an  enemy's  port,  bay,  or  coast  with 
force."  ^  The  object  of  blockade  is  to  cut  off  trade  and  other 
communication  with  the  enemy.  Blockade  is  not  usually  es- 
tablished with  a  view  to  the  destruction  or  surrender  of  the 
place.  The  blockading  forces  are  usually  at  such  a  distance 
from  the  place  blockaded  as  not  to  imperil  its  physical  safe- 
ty, and  they  are  seeking  rather  to  bring  pressure  upon  the 
place  by  preventing  access  and  egress  than  to  injure  the  place 
or  its  inhabitants  by  shot  and  shell. 

Blockade  is  a  war  right,  and  exists  in  time  of  civil  war  as 
in  the  time  of  war  between  states.  Pacific  blockade,  so  called, 
as  affecting  third  states,  is  not  now  regarded  with  favor. - 
Blockade  by  insurgents  is  not  permitted,   as  the   insurgents, 

1  Japanese  Regulations  Governing  Captures  at  Sea,  Marcti  7,  1904, 
art.  21. 

2  Ante,  p.  235. 


440  BLOCKADE.  (Ch.  25 

until  recog-nized  as  belligerents,  have  no  war  rights  upon  the 
sea  against  foreign  states,  have  no  responsible  prize  courts, 
and  no  international  status  which  will  entitle  them  to  exercise 
the  right  of  blockade.^ 

Blockades  are  sometimes  distinguished  as  commercial  or  as 
military  or  strategic.  The  commercial  blockade  is  regarded 
as  aimed  to  cut  off  intercourse  between  the  coast  and  the  world 
at  large,  while  the  military  or  strategic  is  aimed  to  cut  off  the 
military  forces  from  communication  by  sea.  Both  are  at 
present  regarded  as  equally  legitimate,  though  the  abolition 
of  commercial  blockade  has  been  advocated.* 


PLACES    THAT   MAY   BE    BLOCKADED. 

192.  Blockade  is  not  confined  to  a  seaport,  bnt  may  extend 
to  any  avenue  of  communication  ^rhoUy  ivithin  tlie 
jurisdiction  of  the  enemy,  such  as  a  river,  gulf,  bay, 
etc.,  or  a  portion  of  the  enemy  coast. 

A  blockade  aims  to  cut  off  communication  between  the 
enemy  and  the  outside  world.  It  is  legitimate  to  close  any 
avenue  of  communication  which  is  wholly  within  enemy  juris- 
diction, as  ports,  bays,  rivers,  or  coasts.^ 

There  may  be,  however,  waterways  which  furnish  access  to 
the  enemy  which  are  partly  within  neutral  jurisdiction.  It  is 
generally  held  that  straits  connecting  the  open  seas  are  not 
liable  to  blockade,  even   though  both   shores  may  be  within 

3  Letter  of  Secretary  Hay  to  Secretary  of  Navy,  Nov.  15,  1902 ;  In 
re  Prize  Cases,  2  Black,  (J35,  17  L.  Ed.  459. 

4  "To  forbid  all  neutral  commerce,  when  no  immediate  military 
end  is  to  be  served,  and  when  the  effect  of  the  measure  upon  the 
ultimate  issue  of  the  war  is  so  slight  as  usually  to  be  almost  inap- 
preciable, is  to  contradict  in  the  plainest  manner  the  elementary  prin- 
ciple that  neutrals  have  a  right,  as  a  general  rule,  to  trade  with  the 
enemy.  If  this  principle  can  be  invaded,  in  order  that  a  belligerent 
may  be  subjected  to  a  mere  incidental  annoyance,  it  is  for  all  prac- 
tical purposes  nonexistent."     Hall,  Int.  Law  (5th  Ed.)  682. 

6  The  blockade  declared  by  President  McKinley  on  April  22,  189S. 
extended  to  "the  north  coast  of  Cuba,  including  all  ports  on  said 
coast  between  Cardenas  and  Bahia  Honda,  and  the  port  of  Cien- 
fuegos  on  the  south  coast  of  Cuba."  Foreign  Relations  U.  S.  1898,  p. 


§  192)  PLACES   THAT    MAY    BE    BLOCKADED.  441 

enemy  jurisdiction.  A  river  flowing  between  a  neutral  and  a 
belligerent  state  may  not  be  closed  by  blockade,  though,  of 
course,  a  belligerent  may  invest  the  enemy  towns  along  the 
river  and  exercise  war  rights  within  belligerent  jurisdiction. ** 
When  a  river  flows  through  neutral  states  and  belligerent 
states,  and  its  outlet  is  in  a  neutral  state,  its  outlet  may  not 
be  blockaded.  When  the  outlet  is,  however,  within  belligerent 
jurisdiction,  there  is  much  diversity  of  opinion  as  to  the  right 
of  blockade.  Some  claim  that  the  neutral  riparian  states  have 
the  right  to  free  navigation,  even  in  time  of  war.  Others 
claim  that  the  belligerent  has  full  right  to  blockade  the  mouth 
of  any  river,  where  both  banks  are  enemy  territory.  Prac- 
tice has  varied.  The  Danube  was  blockaded  in  1854.  France 
refrained  from  blockading  the  Ems  in  1870,  because  it  would 
injure  Holland,  a  neutral.  Russia  closed  the  Danube  to  com- 
merce in  1877.  Treaties  have  been  made  by  which  certain 
powers  have  agreed  not  to  blockade  certain  rivers,  as  the  con- 
vention in  regard  to  the  Rhine  in  1831,  and  the  treaty  in  re- 
gard to  the  Parana  and  Uruguay  rivers  in  1853. '^  It  seems, 
from  practice  and  from  the  fact  of  treaty  agreement,  tliat  it 
is  not  contrary  to  the  principles  of  international  law  to  block- 
ade a  river  which,  though  traversing  neutral  territory,  dis- 
charges within  belligerent  territory.  Probably  expediency 
would  have  a  large  influence.  If  the  neutral  interests  along 
the  river  were  large  and  the  belligerent  small,  blockade  would 
not  be  established  hastily;  while  if  the  reverse  were  the  case, 
probably  the  belligerent  would  feel  justified  in  establishing  a 
blockade.^ 

The  status  of  canals  in  time  of  war  is  usually  determined 
by  treaty  agreement.  Blockade  of  the  Suez  and  Panama 
canals  is  prohibited  by  treaty. 

6  The  Peterhoff,  5  Wall.  54,  18  L.  Ed.  564. 

7  "If  it  should  happen  (which  God  forbid)  that  war  should  break  out 
between  any  of  the  states,  republics  or  provinces  of  the  River  Plate 
or  its  confluents,  the  navigation  of  the  Rivers  Parana  and  Uruguay 
shall  remain  free  to  the  merchant  flag  of  all  nations,  excepting  in 
what  may  relate  to  munitions  of  war,  such  as  arms  of  all  kinds,  gun- 
powder, lead  and  cannon  balls."  Article  VI,  Treaty  between  United 
States  and  Argentine  Republic,  July  10,  1853.  Other  states  are  also 
parties  to  this  treaty. 

8  Fauchille,  Du  Blocus  Maritime,  p.  172. 


442  BLOCKADE.  (Cb.  25 

The  Declaration  of  London,  1009,  enunciates  the  general 
principles : 

"Article  I.  A  blockade  must  be  limited  to  the  ports  and 
coasts  belonging  to  or  occupied  by  the  enemy." 

"Article  18.  The  blockading  forces  must  not  bar  access  to 
ports  or  to  the  coasts  of  neutrals." 


ESTABLISHMENT    OF   A   BLOCKADE. 

193.    Blockade  may  be  established — 

(a)  By   the    authority    of    the    senior    officer    in    the    area    of 

military    operations    as    a    step    in    the    prosecution    of 
those  operations,  a  de  facto  blockade. 

(b)  Or  more  frequently  by  formal  proclamation  by  the  gov- 

ernment, a  public  blockade. 

(a)  It  may  be  necessary  for  the  senior  officer  in  the  area  of 
hostilities  to  act  without  consulting  the  central  government, 
particularly  if  he  is  at  a  great  distance  from  or  in  a  place 
where  communication  is  not  easy  with  his  superiors.  The 
senior  officer  is  sometimes  clothed  with  authority  to  establish 
a  blockade.  It  is  in  general  held  that  de  facto  blockades  must, 
so  soon  as  known  to  the  central  government,  receive  its  sanc- 
tion. There  is  a  difference  of  opinion  in  regard  to  blockades. 
The  continental  writers  usually  maintain  that  establishment 
by  the  central  government  is  essential  to  bring  the  laws  of 
blockade  into  operation.  American,  English,  and  Japanese 
opinion  does  not  regard  such  action  as  necessary. 

"Blockades  are  divided  by  English  and  American  (and 
Japanese)  publicists,  into  two  kinds:  (1)  A  simple,  or  de 
facto,  blockade ;  and  (2)  a  public,  or  governmental,  blockade. 
This  is  by  no  means  a  mere  nominal  distinction,  but  one  that 
leads  to  practical  consequences  of  much  importance.  In  cases 
of  capture,  the  rules  of  evidence  which  are  applicable  to  one 
kind  of  blockade  are  entirely  inapplicable  to  the  other;  and 
what  a  neutral  vessel  might  lawfully  do  in  case  of  a  simple 
blockade  would  be  sufficient  cause  for  condemnation  in  case  of 
a  governmental  blockade.  A  simple,  or  de  facto,  blockade  is 
constituted  merely  by  the  fact  of  an  investment,  and  without 
any  necessity  of  a  public  notification.    As  it  arises  solely  from 


§  193)  ESTABLISHMENT   OF    A    BLOCKADE.  443 

facts,  it  ceases  when  they  terminate.  Its  existence  must,  there- 
fore, in  all  cases,  be  established  by  clear  and  decisive  evi- 
dence. The  burthen  of  proof  is  thrown  upon  the  captors,  and 
they  are  bound  to  show  that  there  was  an  actual  blockade  at 
the  time  of  the  capture.  If  the  blockading  ships  were  absent 
from  their  stations  at  the  time  the  alleged  breach  occurred, 
the  captors  must  prove  that  it  was  accidental,  and  not  such 
an  absence  as  would  dissolve  the  blockade. 

(b)  "A  public,  or  governmental,  blockade  is  one  where  the 
investment  is  not  only  actually  established,  but  where  also  a 
public  notification  of  the  fact  is  made  to  neutral  powers  by  the 
government,  or  officers  of  state,  declaring  the  blockade.  Such 
notice  to  a  neutral  state  is  presumed  to  extend  to  all  its  sub- 
jects; and  a  blockade  established  by  public  edict  is  presumed 
to  continue  till  a  public  notification  of  its  expiration.  Hence 
the  burthen  of  proof  is  changed,  and  the  captured  party  is  now 
bound  to  repel  the  legal  presumptions  against  him  by  un- 
equivocal evidence.  It  would,  probably,  not  be  sufficient  for 
the  neutral  claimant  to  prove  that  the  blockading  squadron 
was  absent,  and  there  was  no  actual  investment  at  the  time  the 
alleged  breach  took  place.  He  must  also  prove  that  it  was 
not  an  accidental  and  temporary  absence,  occasioned  by 
storms,  but  that  it  arose  from  causes  which,  by  their  necessary 
and  legal  operation,  raised  the  blockade."  ^ 

9  2  Halleek,  Int.  Law  (4tli  Ed.)  p.  218. 

In  the  case  of  The  Olinde  Rodrigues,  174  U.  S.  510,  19  Sup.  Ct.  851, 
43  L.  Ed.  1065,  the  United  States  Supreme  Court  said: 

"This  country  has  always  recognized  the  essential  difference  be- 
tween a  military  and  a  commercial  blockade.  The  one  deals  with  the 
exclusion  of  trade,  and  the  other  involves  the  considei-ation  of  armed 
conflict  with  the  belligerent.  The  necessity  of  a  greater  blockading 
force  in  the  latter  case  than  in  the  former  is  obvious.  The  difference 
is  in  kind,  and  in  degree. 

"Our  government  was  originally  of  opinion  that  commercial  block- 
ades in  respect  of  neutral  powers  ought  to  be  done  away  with;  but 
that  view  was  not  accepted,  and  during  the  period  of  the  Civil  War 
the  largest  commercial  blockade  ever  known  was  established." 


444  BLOCKADE.  (Ch.  25 


DECLARATION  AND   NOTIFICATION   OF  BLOCKADE. 

194.  In  order  to  incur  liability  for  its  breach,  a  neutral  must 
have  knowrledge  of  the  existence  of  a  blockade.  This 
kno^vledge  may  be  communicated: 

(a)  By  public   declaration  and  notification,   announcing  the 

conditions  of  the  establishment  of  the  blockade. 

(b)  By    notifying    vessels    ivhen    they    approach     the     place 

blockaded. 

It  is  universally  held  that,  to  be  binding,  a  blockade  must 
be  known.  There  is,  however,  difference  of  opinion  as  to 
what  constitutes  knowledge  which  will  render  a  neutral  vessel 
liable  to  penalty. 

(a)  The  Declaration  of  London,  1909,  makes  provision  as  to 
what  points  must  be  specified  in  a  declaration  of  blockade : 

"Article  9.  A  declaration  of  blockade  is  made  either  by  the 
blockading  power  or  by  the  naval  authorities  acting  in  its 
name. 

"It  specifies — ■ 

"(1)  The  date  when  the  blockade  begins. 

"(2)  The  geographical  limits  of  the  coast  blockaded. 

"(3)  The  delay  to  be  allowed  to  neutral  vessels  for  de- 
parture." 

And  also  that  the  declaration  of  blockade  must  be  officially 
notified : 

"Article  11.  A  declaration  of  blockade  is  notified — 

"(1)  To  neutral  powers,  by  the  blockading  power,  by  means 
of  a  communication  addressed  to  the  governments  themselves, 
or  to  their  representatives  accredited  to  it. 

"(2)  To  the  local  authorities,  by  the  officer  commanding  the 
blockading  force.  These  authorities  will,  on  their  part  inform 
as  soon  as  possible  the  foreign  consuls  who  exercise  their 
functions  in  the  port  or  on  the  coast  blockaded." 

The  provisions  of  this  article  11  make  necessary  two  notifi- 
cations. Notification  to  the  neutral  states  has  been  customary. 
Notification  to  the  local  authorities  is  necessary,  in  order  that 
neutrals  at  the  time  within  the  blockaded  area  may  have 
knowledge  of  the  blockade  and  become  liable  in  case  of  vio- 
lation.    The  responsibility  for  making  known  to  the  neutrals 


§  194)       DECLARATION  AND  NOTIFICATION  OF  BLOCKADE.       445 

the  existence  of  the  blockade  is  placed  upon  the  local  au- 
thorities of  the  blockaded  belligerent.  A  neutral  vessel  com- 
ing out  of  a  blockaded  port  cannot,  in  general,  plead  ignorance 
of  the  blockade  if  the  local  authorities  have  been  notified  be- 
fore she  sailed.  The  blockading  commander  cannot  hold  a 
neutral  vessel  liable  for  information  which  he  has  not  given ; 
e.  g.,  if  the  commander  has  not  specified  how  many  days  will 
be  allowed  for  neutral  vessels  to  leave  port,  it  is  assumed  that 
he  did  not  intend  to  place  a  limit  upon  such  departure,  and  the 
vessels  are  allowed  to  pass  free.  If,  however,  the  neglect  to 
communicate  the  conditions  of  the  blockade  rests  upon  the 
local  authorities,  ignorance  on  the  part  of  neutral  vessels 
leaving  the  port  will  not  affect  the  liability  of  vessels  as  re- 
gards the  blockading  force. 

The  American,  British,  and  Japanese  practice  had  assumed 
that  a  neutral  vessel,  leaving  port  after  its  government  had 
been  officially  notified,  had  knowledge  of  the  blockade  and  was 
liable  to  penalty.    The  United  States  position  was  as  follows: 

"Neutral  vessels  are  entitled  to  notification  of  a  blockade  be- 
fore they  can  be  made  prize  for  its  attempted  violation.  The 
character  of  this  notification  is  not  material.  It  may  be  actual, 
as  by  a  vessel  of  the  blockading  force,  or  constructive,  as  by 
a  proclamation  of  the  government  maintaining  the  blockade, 
or  by  common  notoriety.  If  a  neutral  vessel  can  be  shown  to 
have  had  notice  of  the  blockade  in  any  way,  she  is  good  prize, 
and  should  be  sent  in  for  adjudication;  but,  should  formal 
notice  not  have  been  given,  the  rule  of  constructive  knowl- 
edge arising  from  notoriety  should  be  construed  in  a  manner 
liberal  to  the  neutral."  ^° 

The  Declaration  of  London,  1909,  announces: 

"Article  15.  Failing  proof  to  the  contrary,  knowledge  of 
the  blockade  is  presumed  if  the  vessel  left  a  neutral  port  sub- 
sequently to  the  notification  of  the  blockade  made  in  sufficient 
time  to  the  power  to  which  such  port  belongs." 

(b)  In  case  of  de  facto  blockades,  and  in  cases  where  there 
is  reasonable  doubt  as  to  the  knowledge  of  the  existence  of 
the  blockade  on  the  part  of  the  neutral  vessel,  the  vessel  is 

10  General  Order  492,  Navy  Department,  June  20,  1898,  No.  3,  For- 
eign Relations  U.  S.  1S9S,  p.  780. 


446  BLOCKADE.  (Ch.  25 

entitled  to  notification  by  a  vessel  before  the  blockaded  port.^^ 
Such  notification  should  be  entered  on  the  ship's  log,  with  the 
officer's  official  signature. 

The  continental  practice  was  to  give  public  notification  of 
the  blockade  to  neutral  states  as  an  act  of  international  cour- 
tesy, in  order  that  undue  hardship  to  neutral  commerce  may 
so  far  as  possible  be  prevented,  and  also  to  notify  a  neutral 
vessel  as  it  approaches  the  blockaded  place. 


VESSELS    IN    THE    BLOCKADED    PORT. 

195.  Neutral  vessels  in  a  blockaded  port  iwhen  a  blockade  is 
establisked  are,  by  general  usage,  allovped  to  discharge 
and  load  cargo  and  to  depart  vrithin  a  specified  time. 

Vessels  within  a  neutral  port  at  the  establishment  of  a 
blockade  were  formerly  presumed  to  be  notified.^-  The  Dec- 
laration of  London,  1909  (article  9),  provides  that,  in  order 
that  neutral  vessels  in  port  at  the  establishment  of  a  blockade 
may  be  liable  to  condemnation  for  breach  of  blockade  on  leav- 
ing the  port,  there  must  be  in  the  notified  declaration  a  state- 

11  Id.  Nos.  4,  5;    Declaration  of  London,  1909,  art.  16. 

"When  the  commanding  officer  of  a  squadron  or  a  man  of  war  de- 
clares a  blockade,  he  shall  take  the  following  steps: 

"1.  He  shall  report  the  declaration  of  the  blockade  to  the  minister 
of  the  navy. 

"2.  He  shall  report  the  declaration  of  the  blockade  to  every  Japan- 
ese minister  residing  in  the  countries  near  the  blockaded  area,  and 
shall  request  him  to  inform  the  government  of  the  country  and  all  the 
foreign  ministers  and  consuls  residing  in  the  country  to  which  he  is 
accredited  of  the  establishment  of  the  blockade. 

"3.  He  shall  communicate  the  declaration  of  the  blockade  to  all  the 
foreign  consuls  residing  in  neutral  districts  in  the  neighborhood  of 
the  blockaded  area,  and  shall  take  any  other  measures  necessary  to 
make  known  the  fact  of  the  blockade. 

"4.  He  shall  inform  as  far  as  possible,  by  means  of  a  flag  of  truce, 
the  proper  officers  and  consuls  of  neutral  countries  residing  within 
the  blockaded  area,  of  the  declaration  of  the  blockade." 

Article  24,  Japanese  Regulations  Governing  Captures  at  Sea,  Marci» 
7,  1904. 

The  Johanna  Maria,  Spinks,  307. 

12  In  re  Prize  Cases,  2  Black,  G35,  17  L.  Ed.  459. 


§  196)  maintp:na\ce  of  a  blockade.  447 

ment  of  the  period  within  which  neutral  vessels  may  depart; 
otherwise  (article  16)  the}^  are  free  to  depart  at  any  time. 

The  practice  of  allowing  neutral  vessels  to  withdraw  from 
a  blockaded  port  is  comparatively  modern.  The  period  al- 
lowed has  usually  been  tifteen  days,  but  this  has  not  been 
uniform.  The  United  States  proclamations  in  the  Spanish- 
American  War  in  1898  stated  that  "neutral  vessels  lying  in 
any  of  said  ports  at  the  time  of  the  establishment  of  such 
blockade  will  be  allowed  thirty  days  to  issue  therefrom."  ^^ 
It  is  now  understood  that  neutral  vessels  should  be  allowed  a 
reasonable  time  to  depart  from  a  blockaded  port.  The  period 
thus  allowed  will  depend  upon  the  circumstances  in  each  case. 

MAINTENANCE    OF   A   BLOCKADE. 

196.  By  the  Declaration  of  Paris,  of  1856,  it  was  set  forth 
that  "blockades,  in  order  to  be  binding,  must  be  ef- 
fective; that  is  to  say,  maintained  by  a  force  suficient 
to  prohibit  access  to  the  coast  of  the   enemy."  i* 

This  definition  of  an  effective  blockade  was  generally  ac- 
cepted in  order  to  put  an  end  to  paper  blockades  of  the  earlier 
part  of  the  nineteenth  century.  It  is  manifest,  with  the  pres- 
ent development  of  means  of  communication,  that  strict  main- 
tenance of  such  a  blockade  would  be  impossible.^ ^  The  dec- 
laration has  therefore  been  interpreted  in  a  liberal  spirit.  On 
the  contineait  the  interpretation  has  been  more  strict  than  else- 

13  Foreign  Relations  U.  S.  1898,  pp.  769,  773. 

14  "Art.  4.  Les  blocus  pour  Ctre  obligatoires,  doivent  §tre  effectifs, 
c'est  a  dire  maintenus  par  une  force  suffisante  pour  interdire  I'acces 
du  littoral  ennemi." 

15  "A  blockade  to  be  effective  need  not  be  perfect.  It  is  not  neces- 
sary that  the  beleaguered  port  should  be  hermetically  sealed.  It  is 
not  enough  to  make  the  blockade  ineffective  that  on  some  particu- 
larly stormy  night  a  blockade  ruimer  slid  through  the  blockading 
squadron.  Nor  is  it  enough  that  through  some  exceptional  and  rare 
negligence  of  the  officers  of  one  of  the  blockading  vessels  a  blockade 
runner  was  allowed  to  pass  when  perfect  vigilance  could  have  ar- 
rested him.  But  if  the  blockade  is  not  in  the  main  effective — if  it  can 
be  easily  eluded — if  escaping  its  toils  is  due  not  to  casus  or  some  rare 
and  exceptional  negligence,  but  to  a  general  laxity  or  want  of  effi- 
ciency— then  such  blockade  is  not  valid." 

Wharton,  Commentaries  American  Law,  §  233. 


448  BLOCKADE.  (Ch.  25 

where.  A  decision  of  the  United  States  Supreme  Court  in 
1899  contains  the  following: 

"To  be  binding-,  the  blockade  must  be  known,  and  the 
blockading  force  nnist  be  present ;  but  is  there  any  rule  of 
law  determining  that  the  presence  of  a  particular  force  is  es- 
sential in  order  to  render  a  blockade  effective?  We  do  not 
think  so.  but,  on  the  contrary,  that  the  test  is  whether  the 
blockade  is  practically  effective,  and  that  that  is  a  question, 
though  a  mixed  one,  more  of  fact  than  of  law. 

"The  fourth  maxim  of  the  Declaration  of  Paris  (April  16, 
1856)  was :  'Blockades,  in  order  to  be  binding,  must  be  ef- 
fective; that  is  to  say,  maintained  by  a  force  sufficient  really 
to  prevent  access  to  the  coast  of  the  enemy.'  Manifestly  this 
broad  definition  was  not  intended  to  be  literally  applied.  The 
object  was  to  correct  the  abuse,  in  the  early  part  of  the  cen- 
ttiry.  of  paper  blockades,  where  extensive  coasts  were  put 
under  blockade  by  proclamation,  without  the  presence  of  any 
force,  or  an  inadequate  force ;  and  the  question  of  what 
might  be  sufficient  force  was  necessarily  left  to  be  determined 
according  to  the  particular  circumstances.     *    *    * 

"As  we  hold  that  an  effective  blockade  is  a  blockade  so 
effective  as  to  make  it  dangerous  in  fact  for  vessels  to  attempt 
to  enter  the  blockaded  port,  it  follows  that  the  question  of 
effectiveness  is  not  controlled  by  the  number  of  the  blockading 
force.  In  other  words,  the  position  cannot  be  maintained 
that  one  modern  cruiser,  though  sufficient  in  fact,  is  not  suffi- 
cient as  matter  of  law."  ^^ 

This  decision  of  the  United  States  Supreme  Court  seems  to 
be  most  reasonable,  and  is  in  effect  in  full  accord  with  the 
conclusions  of  the  International  Naval  Conference  of  1908-09, 
as  shown  in  articles  2  and  3  of  the  Declaration  of  London  and 
in  the  report  upon  these  articles.^ ^ 

16  The  Olinde  Rodrigues,  174  U.  S.  510,  19  Sup.  Ct.  851,  43  L.  Ed. 
1065. 

An  English  opinion  states  that:  "In  the  eye  of  the  law  a  blockade 
is  effective  if  the  enemies'  ships  are  in  such  numbers  and  position  as 
to  render  the  running  of  the  blockade  a  matter  of  danger,  although 
some  vessels  may  succeed  in  getting  through."  Geipel  v.  Smith,  L. 
R.  7  Q.   B.  404. 

1  ~  British  Parliamentary  Papers,  Miscellaneous  No.  4  (1909)  p.  36. 


§  197)  TERMINATION    OF    A    BLOCKADE.  449 

Questions  have  been  raised  as  to  the  meaning  of  the  words 
"sufficient  force."  Shore  batteries  commanding  the  approach 
to  the  blockaded  port,  supported  by  a  naval  force,  have  been 
considered  "sufficient."  ^^  The  sinking  of  vessels  laden  with 
stone  or  similar  obstructions  in  a  part  of  the  harbor  mouth 
or  in  a  part  of  the  outlets  has  been  allowed  as  auxiliary  to 
blockade.^*  There  was  considerable  discussion  at  the  Hague 
Conference  in  1907  as  to  the  use  of  submarine  mines  for  the 
purpose  of  blockade.  No  definite  conclusion  was  reached  be- 
yond that  of  article  II  of  the  Convention  Relative  to  the  Lay- 
ing of  Submarine  Automatic  Contact  Mines :  "It  is  forbidden 
to  lay  automatic  contact  mines  off  the  coast  and  ports  of  the 
enemy,  with  the  sole  object  of  intercepting  commercial  ship- 
ping." ^°  This  limitation  would  not  usually  be  specially  bur- 
densome, as  the  use  of  mines  for  the  "sole  object  of  inter- 
cepting commercial  shipping"  would  not  be  common,  and  in- 
tent is  difficult  to  prove. 

The  United  States  announced  in  1898  the  simple  proposition 
that  "a  blockade,  to  be  effective  and  binding,  must  be  main- 
tained by  a  force  sufficient  to  render  ingress  to  or  egress  from 
the  port  dangerous."  ^^ 

TERMINATION  OF  A  BLOCKADE. 

197.    A  blockade  ceases: 

(a)  On.  the   conclnsion   of  peace. 

(b)  When  the  blockading  vessels  voluntarily  'arithdraw. 

(c)  When  these  vessels  are  driven  a^vay  by  the  enemy,  how- 

ever short  the  time  of  absence. 

(d)  W^hen  it  ceases  to  be  effective,  except  because  of  stress 

of  Tveather. 

(e)  When  the  blockaded  place  comes  into  possession  of  the 

forces  of  the  blockading  belligerent. 

(a)  As  blockade  is  a  measure  of  war,  it  comes  to  an  end 
when  peace  is  restored     An  armistice  or  suspension  of  hostili- 

18  The  Circassian,  2  Wall.  135,  17  L.  Ed.  796. 

19  U.  S.  Dip.  Corresipondence  1862,  pp.  36,  316;  Foreign  Relations 
U.  S.  1884,  pp.  66,  96;   Id.  1886,  p.  95;    Id.  1894,  Appendix  I,  p.  71. 

20  Scott,  Ha^e  Conferences,  p.  253. 

21  Foreign  Relations  U.  S.  1898,  p.  780. 

WiLS.lNT.L.— 29 


450  BLOCKADE.  (Cll.  25 

ties  does  not  terminate  a  blockade,  or  even  suspend  it,  as 
neutrals  are  not  bound  by  the  armistice,  and  might  during  the 
suspension  commit  those  acts  which  the  blockade  exists  to 
prevent. 

(b)  When  the  blockading  force  voluntarily  withdraws,  the 
blockade  is  said  to  be  raised,  and  it  is  customary  for  the  block- 
ading belligerent  to  notify  neutrals  of  this  fact,  as  of  the  es- 
tablishment of  a  blockade.  Such  notification  was  made  obliga- 
tory by  article  13  of  the  Declaration  of  London. 

(c)  When  the  blockading  vessels  are  driven  away  by  the 
enemy,  the  blockade  is  effectively  broken,  and  can  only  be  re- 
newed in  the  same  manner  as  it  was  originally  established. 

(d)  As,  in  general,  "a.  blockade,  to  be  binding,  must  be  ef- 
fective," it  comes  to  an  end  when  it  ceases  to  be  effective. 

It  is  generally  held  that  the  temporary  absence  of  the  whole 
or  a  part  of  the  blockading  force  *on  account  of  the  stress  of 
weather  does  not  put  an  end  to  the  blockade,  as  the  same 
stress  would  affect  the  vessels  attempting  to  pass  the  blockade 

There  was  a  difference  of  opinion  as  to  the  temporary  ab- 
sence of  blockading  forces  in  pursuit  of  a  vessel  which  has 
run  the  blockade.  The  English  and  American  opinion  was  to 
the  effect  that  temporary  absence  for  blockading  purposes  does 
not  raise  the  blockade,  though  a  neutral  vessel,  entering  or 
leaving  at  such  time,  does  not  incur  penalty. 

The  United  States  instructions  issued  to  blockading  vessels 
in  1898  state  that : 

"A  blockade,  to  be  effective  and  binding,  must  be  maintained 
by  a  force  sufficient  to  render  ingress  to  or  egress  from  the 
port  dangerous.  If  the  blockading  vessels  be  driven  away  by 
stress  of  weather,  but  return  without  delay  to  their  stations, 
the  continuity  of  the  blockade  is  not  thereby  broken;  but  if 
they  leave  their  stations  voluntarily,  except  for  purposes  of  the 
blockade,  such  as  chasing  a  blockade  runner,  or  are  driven 
away  by  the  enemy's  force,  the  blockade  is  abandoned  or  bro- 
ken. As  the  suspension  of  a  blockade  is  a  serious  matter,  in- 
volving a  new  notification,  commanding  officers  will  exercise 
especial  care  not  to  give  grounds  for  complaints  on  this 
score."  ^^ 

22  Id, 


§  198)  VIOLATION    OF   BLOCKADE.  ^  451 

The  Declaration  of  London  (article  4)  is  to  the  effect  that 
the  blockade  would  be  regarded  as  raised,  and  must  be  again 
declared  and  notified,  if  the  forces  are  withdrawn  for  any  rea- 
son other  than  because  of  stress  of  weather. 

When,  after  the  time  specified  in  the  proclamation,  vessels, 
other  than  public  vessels  of  a  neutral  or  vessels  in  distress, 
are  allowed  to  pass  a  blockade,  it  is  generally  held  to  be  no 
longer  effective.-^ 

(e)  As  blockade  would  no  longer  be  necessary  when  the 
belligerent  obtained  possession  of  the  blockaded  place,  it  is 
considered  that  actual  occupation  of  the  place  supersedes  and 
puts  an  end  to  the  blockade.^* 

VIOI.ATION    OF   BLOCKADE. 

198.    The  actual  passing  or  the  attempt  to  pass  a  blockade  is 
regarded   as  a  violation   of  blockade. 

It  is  generally  held  that  the  actual  unallowed  passing  of  a 
blockade  constitutes  a  violation. 

The  doctrine  of  the  French  and  Italian  courts,  and  con- 
tinental opinion  in  general,  is  that  an  actual  attempt  to  pass 
the  line  of  blockading  forces  before  the  place  blockaded  is 
necessary,  in  order  to  create  a  breach  of  blockade. 

The  American,-^  English,-^  and  Japanese^ ^  courts  have  held 

23  The  Franciska,  Spinks,  287;  The  Johanna  Maria,  Spinks,  307. 

24  The  Circassian,  2  Wall.  135,  17  L.  Ed.  796 ;  The  Adula,  176  U. 
S.  361,  20  Sup.  Ct.  432,  44  L.  Ed.  505. 

2  3  The  Aclnla,  176  U.  S.  361,  20  Sup.  Ct.  432,  44  L.  Ed.  505;  Yeaton 
V.  Frj-,  b  Cranch,  335,  3  L.  Ed.  117 ;  The  Circassian,  2  Wall.  135,  17 
L.  Ed.  796. 

2G  The  Frederick  Molke,  1  C.  Rob.  86;  The  Columbia,  1  C.  Rob. 
130 ;    The  Neptunus.  2  C.  Rob.  110. 

27  "Any  vessel  which  has  received  notification  of  a  blockade  shall 
be  considered  to  have  violated  the  blockade  inward  in  the  following 
cases: 

"1.  When  such  vessel  has  passed  into  the  blockaded  area,  or  has 
attempted  to  do  so. 

"2.  When  such  vessel,  lying  in  the  neighborhood  of  the  blockaded 
area,  is  considered  to  be  steering  into  the  area,  no  matter  what  port 
of  destination  is  mentioned  in  the  ship's  papers. 

"3.  When  such  vessel  has  transported  or  attempted  to  transport 


452  BLOCKADE.  (Ch.  25 

that  the  attempt  to  pass  begins  at  the  time  when  the  vessel 
leaves  neutral  vvraters  bound  for  the  place  blockaded. 

The  Declaration  of  London,  1909  (article  17),  attempted  to 
reconcile  the  differences  of  opinion  by  prescribing  the  area 
within  which  neutral  vessels  might  be  captured  for  violation 
of  blockade,  viz. :  "Within  the  radius  of  action  of  the  ships 
of  war  assigned  to  maintain  an  effective  blockade."  Under 
this  regulation  a  neutral  vessel  leaving  a  neutral  port  would 
not  be  liable  for  intent  to  break  a  blockade  until  she  had  come 
within  the  zone  within  which  the  blockading  forces  were 
operating.  The  determination  of  this  zone  will  be  considered 
more  at  length  under  section  200,  pages  454-458. 

In  the  following  cases  it  is  generally  held  that  there  is  no 
violation  of  blockade  by  egress :  (1)  When  a  vessel  passes 
out  under  official  permit ;  (2)  when  a  vessel  which  has  inno- 
cently entered  a  port  passes  out  in  ballast,  or  without  dis- 
charging or  loading  cargo ;  (3)  when  a  vessel  in  port  at  begin- 
ning of  blockade  passes  out  in  ballast;  or  (4)  when  a  vessel 
sails  out  with  innocent  cargo  loaded  before  the  blockade  was 
declared.  In  the  following  cases  ingress  is  not  considered  a 
violation:  (1)  When  a  vessel  has  official  permission  to  enter; 
(2)  when  a  vessel  enters  under  stress  of  weather,  because  of 
lack  of  provisions,  or  from  other  absolute  necessity ;  or  (3) 
when  a  vessel  sails  for  a  blockaded  port,  anticipating  in  good 
faith  the  termination  of  the  blockade,  and  intending  to  go  to 
another  port  in  case  the  blockade  continues. 

The  permitted  passing  of  blockade  by  public  neutral  vessels 
is  not  a  violation  of  blockade.  This  may  be  forbidden,  but  is 
usually  regulated,^*  but  regulations  should  always  be  impartial. 

cargo  to  a  blockaded  place,  by  transshipping  to  another  vessel  out- 
side of  the  blockaded  area  in  order  that  the  latter  may  pass  the  line 
of  blockade. 

"4.  When  such  vessel  is  bound  for  the  blockaded  port." 

Article  XXIX,  Japanese  Regulations  Governing  Captures  at  Sea, 
March  7,  1904. 

2  8  During  the  Spanish-American  War  of  1898  the  following  was 
accepted  as  appropriate  procedure: 

"1.  That  a  prerequisite  of  the  entrance  of  a  neutral  vessel  of  war 
into  a  blockaded  port,  unles.s  in  a  case  of  exceptional  urgency,  should 
be  the  consent  of  the  government  establishing  the  blockade,  obtained 
through  the  usual  diplomatic  channels. 

"2.  The  approach  of  the  blockaded  port  in  such  a  manner  that  the 


§  199)       PENALTY    FOR   THE    VIOLATION    OF   BLOCKADE.         453 


PENALTY  FOR   THE  VIOLATION   OF   BLOCKADE. 

199.  The  penalty  for  tlie  violation  of  blockade  may  be  the 
forfeiture  of  vessel  and  cargo,  or,  in  certain  oases,  tbe 
forfeiture  of  tbe  vessel  only. 

The  violation  of  a  blockade  is  an  offense  against  the  block- 
ading state,  and  not  usually  against  the  law  of  the  neutral 
state.  The  penalty  is  therefore  liability  of  the  vessel  and  cargo 
to  capture  and  condemnation.  The  vessel,  as  the  means  of  vio- 
lation, is  always  liable  to  penalty,  and  when  vessel  and  cargo 
belong  to  same  owner  both  are  liable.  The  cargo  may  be 
proven  innocent,  and  may  be  released.  This  may  be  the  case 
when  vessel  and  cargo  belong  to  different  owners,  and  the 
owner  of  the  innocent  cargo  has  no  intent  to  violate  the 
blockade.^® 

senior  ofiicer  of  the  blockading  squadron  would  recognize  with  cer- 
tainty upon  the  appearance  of  a  neutral  vessel  in  the  blockaded  belt 
her  identity  with  the  war  vessel  of  whose  coming  he  had  been  notitied. 

"3.  In  such  exceptional  cases  as  prevent  permission  being  previ- 
ously obtained  through  the  usual  diplomatic  channels,  the  decision 
to  rest  with  the  senior  officer  present  of  the  blockading  squadron. 

"4.  No  special  formalities  in  connection  with  the  departure  of  neu- 
tral vessels  of  war  from  a  blockaded  port  are  requisite,  other  than 
may  be  necessary  to  identify  the  vessel  leaving  the  port  as  a  neutral, 
the  arrangements  concerning  the  same  to  be  agreed  upon  between  the 
commanding  officer  of  the  blockading  squadron  and  the  commanding 
officer  of  the  vessel  in  the  blockaded  port."  Foreign  Relations  U.  S. 
1898,  p.  1168. 

29  2  Halleck,  Int.  Law  (4th  Ed.)  237;  Declaration  of  London,  art. 
21,  Appendix,  p.  575, 


454  BLOCKADE.  (Ch.  25 


I/IABILITY   FOR   VIOLATION    OF   BLOCKADE. 

200.    (a)    By  American,  English,  and  Japanese  opinion; 

(1)  In  case  of  violation  of  blockade  by  egress,  the  vessel 

ivas   generally  held   to    be  in  delicto   until  she   has 
completed  her  voyage. 

(2)  A  vessel  bound  for  a  blockaded  port  is  regarded  as 

in  delicto  from  the  time   she  leaves  neutral  xraters 
until  she  returns  to  her  home  port. 

(b)  By   continental    European    opinion   neutral   vessels    jxrere 

held  to  be  in  delicto  only  -when  attempting  to  pass  the 
blockade  and  during  continuous  pursuit  from  the  line 
of  blockade  by  a  blockading  vessel  until  they  reached  a 
neutral  port. 

(c)  By  the  Declaration  of  London,  1909: 

"Article  17.  The  seizure  of  neutral  vessels  for  violation  of 
blockade  may  be  made  only  xirithin  the  radius  of  ac- 
tion of  the  ships  of  war  assigned  to  maintain  an  effec- 
tive  blockade. 

"Article  20.  A  vessel  which  in  violation  of  blockade  has 
left  a  blockaded  port  or  has  attempted  to  enter  the 
port  is  liable  to  capture  so  long  as  she  is  pursued  by  a 
ship  of  the  blockading  force.  If  the  pursuit  is  aban- 
doned, or  if  the  blockade  is  raised,  her  capture  can  no 
longer   be    effected." 

(a)  (1)  The  English  opinion,^"  extending  the  liability  to 
capture  for  violation  of  blockade  throughout  the  voyage,  seems 
to  be  based  on  a  Dutch  Ordinance  of  1630.^^  This  was  re- 
garded at  the  time  as  augmenting  unduly  belligerent  rights, 
and  was  abandoned  by  most  other  states.^ - 

(2)  During  the  early  period  the  American  tendency  was 
to  follow  the  continental  rather  than  the  English  opinion.^' 
In  1898,  however,  as  in  the  Civil  War,  the  United  States  gave 
clear  enunciation  to  the  English  doctrine :  "The  liability  of 
a  blockade  runner  to  capture  and  condemnation  begins  and 
terminates  with  her  voyage.  If  there  is  good  evidence  that  she 
sailed  with  intent  to  evade  the  blockade,  she  is  good  prize 

80  The  Frederick  Molke,  1  C.  Rob.  S6 ;    The  Welvaart  van  Pillaw, 
2  C.  Rob.  128 ;    The  General  Hamilton,  6  C.  Rob.  61. 
31  Robinson,  Collectania  Maritima,  165. 
82  1  Kleen,  La  Neutralite,  63S. 
«8  American  State  Papers,  2  Foreign  Relations  (1797)  154. 


§  200)         LIABILITY   FOR    VIOLATION    OF    BLOCKADE.  455 

from  the  moment  she  appears  upon  the  high  seas.  Similarly, 
if  she  has  succeeded  in  escaping  from  a  blockaded  port,  she  is 
liable  to  capture  at  any  time  before  she  reaches  her  home  port. 
But  with  the  termination  of  the  voyage  the  offense  ends."  ^* 

The  Japanese  regulations  of  190rt  embody  the  same  prin- 
ciples, while  the  Russian  regulations  conform  to  the  conti- 
nental opinion. ^^ 

It  is  also  held  that  a  vessel  remote  from  and  having  no 
connection  with  the  blockade  may  capture  a  vessel  which  has 
violated  a  blockade.^'  The  position  taken  by  the  United 
States,  Great  Britain,  and  Japan  has  received  much  unfavor- 
able criticism.^'' 

There  is  also  considerable  difference  of  opinion  as  to  what 
constitutes  a  voyage  and  when  the  voyage  is  complete.  In 
case  of  tramp  steamers  having  neutral  registry,  there  are 
many  instances  where  the  return  to  a  home  port  is  a  rare  oc- 
currence, and  where  voyages  are  not,  as  in  earlier  days,  out 
to  and  back  from  a  certain  port.  Before  returning  to  the 
home  port,  such  steamers  may  go  to  ports  far  more  remote, 
and  in  some  instances  may  not  for  a  long  period,  if  ever,  re- 
turn to  the  so-called  home  port. 

(b)  The  continental  doctrine  works  less  hardship  upon  the 
neutral,  and  if  the  Declaration  of  Paris,  that  blockade,  to  be 
binding,  must  be  effective,  is  to  be  fairly  and  strictly  inter- 

34  Foreign  Relations  U.  S.  1S98,  p.  781. 

3  5  "Art.  11.  Merchant  vessels  of  neutral  nationality  are  subject  to 
confiscation  as  prizes  in  the  following  cases:  *  *  *  (2)  When  the 
vessels  are  caught  violating  a  blockade,  and  it  is  not  proven  that  the 
establishment  of  the  blockade  remained  unknown  to  the  masters." 

For  the  enforcement  of  this  law  the  instructions  provided: 

"37.  Vessels  subject  to  detention  are  the  following:  *  *  *  (2) 
Neutral  merchant  vessels.  *  *  *  (c)  If  they  are  caught  violating 
an  actual  and  declared  blockade." 

86  "Any  public  vessel  of  the  belligerent,  whose  rights  had  been  vio- 
lated, may  be  the  agent  or  minister  to  apprehend  the  offender,  though, 
by  dexterity  or  superior  speed,  the  culpable  actor  may  escape  arrest 
at  the  time  or  place  of  the  perpetration  of  the  wrong."  The  Memphis, 
Blatchf.  Prize  Cas.  260,  Fed.  Cas.  No.  9,413. 

87  1  Kieen,  La  Neutrality,  638 ;  8  Pradier-Foder6,  Droit  Int.  Pub- 
lic, §  3143;  Gessner,  Le  Droit  des  Neutres  sur  Mer,  214;  Fauchille, 
Du  Blocus  Maritime.  354, 


456  BLOCKADE.  (Ch.  25 

preted,  it  may  be  maintained  that  the  liability  to  capture  for 
violation  of  blockade  should  be  confined  to  the  field  of  effective 
opeiations,  which  would  include  the  limit  of  continuous  pur- 
suit.^^ 

(c)  The  International  Naval  Conference  at  London,  in  1909, 
found  wide  differences  of  opinion  existing  among  the  naval 
powers.^''  Finally,  the  following  rule  was  adopted,  becoming 
article  17  of  the  Declaration  of  London: 

"The  seizure  of  neutral  vessels  for  violation  of  blockade 
may  be  made  only  within  the  radius  of  action  of  the  ships  of 
war  assigned  to  maintain  an  effective  blockade." 

As  to  what  constitutes  a  "radius  of  action,"  there  is  an  ex- 
planation given  in  the  official  report.  This  is  of  such  im- 
portance in  its  bearing  on  maritime  hostilities  that  it  is  given  in 
full : 

"When  a  government  decides  to  undertake  blockading  op- 
erations against  some  part  of  the  enemy  coast,  it  details  a  cer- 
tain number  of  warships  to  take  part  in  the  blockade,  and  in- 
trusts the  command  to  an  officer,  whose  duty  is  to  use  them 
for  the  purpose  of  making  the  blockade  effective.  The  com- 
mander of  the  naval  force  thus  formed  posts  the  ships  at  his 
disposal  according  to  the  line  of  the  coast  and  the  geographical 
position  of  the  blockaded  places,  and  instructs  each  ship  as 
to  the  part  which  she  has  to  play,  and  especially  as  to  the  zone 
which  she  is  to  watch.  All  the  zones  watched,  taken  together 
and  so  organized  as  to  make  the  blockade  effective,  form  the 
area  of  operations  of  the  blockading  naval  force. 

"The  area  of  operations  so  constituted  is  intimately  con- 
nected with  the  effectiveness  of  the  blockade,  and  also  with 
the  number  of  ships  employed  on  it. 

"Cases  may  occur  in  which  a  single  ship  will  be  enough  to 
keep  a  blockade  effective,  for  instance,  at  the  entrance  of  a 
port,  or  at  the  mouth  of  a  river  with  a  small  estuary,  so  long 
as  circumstances  allow  the  blockading  ship  to  stay  near  enough 
to  the  entrance.    In  that  case  the  area  of  operations  is  itself 

38  Gen.  Davis  says:  "When  the  offense  is  one  of  egress,  the  penaltj' 
continues  until  the  vessel  reaches  the  territorial  vraters  of  a  neutral 
state."     Elements  of  Int.  Law,  p.  476. 

3  9  British  Parliamentary  Papers,  Miscellaneous  No.  4  (1909)  p.  255ff. 


§  200)  LIABILITT    FOR   VIOLATION    OF    BLOCKADE.  457 

near  the  coast.  But,  on  the  other  hand,  if  circumstances  force 
her  to  remain  far  off,  one  ship  may  not  be  enough  to  secure 
effectiveness,  and  to  maintain  this  she  will  then  have  to  be 
supported  by  others.  From  this  cause  the  area  of  operations 
becomes  wider,  and  extends  further  from  the  coast.  It  may 
therefore  vary  with  circumstances,  and  with  the  number  of 
blockading-  ships;  but  it  will  always  be  limited  by  the  condi- 
tion that  effectiveness  must  be  assured. 

"It  does  not  seem  possible  to  fix  the  limits  of  the  area  of 
operations  in  definite  figures,  any  more  than  to  fix  beforehand 
and  definitely  the  number  of  ships  necessary  to  assure  the 
effectiveness  of  any  blockade.  These  pomts  must  be  settled 
according  to  circumstances  in  each  particular  case  of  a  block- 
ade. This  might,  perhaps,  be  done  at  the  time  of  making  the 
declaration. 

"It  is  clear  that  a  blockade  will  not  be  established  in  the 
same  way  on  a  defenseless  coast  as  on  one  possessing  all  mod- 
ern means  of  defense.  In  the  latter  case  there  could  be  no 
question  of  enforcing  a  rule  such  as  that  which  formerly  re- 
quired that  ships  should  be  stationary  and  sufficiently  close  to 
the  blockaded  places.  The  position  would  be  too  dangerous 
for  the  ships  of  the  blockading  force,  which,  besides,  now 
possess  more  powerful  means  of  watching  effectively  a  much 
wider  zone  than  formerly. 

"The  area  of  operations  of  a  blockading  naval  force  may 
be  rather  wide ;  but  as  it  depends  on  the  number  of  ships  con- 
tributing to  the  effectiveness  of  the  blockade,  and  is  always 
limited  by  the  condition  that  it  should  be  effective,  it  will 
never  reach  distant  seas,  where  merchant  vessels  sail  which 
are,  perhaps,  making  for  the  blockaded  ports,  but  whose  desti- 
nation is  contingent  on  the  changes  which  circumstances  may 
produce  in  the  blockade  during  their  voyage.  To  sum  up,  the 
idea  of  the  area  of  operations  joined  with  that  of  effectiveness, 
as  we  have  tried  to  define  it,  that  is  to  say,  including  the  zone 
of  operations  of  the  blockading  forces,  allows  the  belligerent 
effectively  to  exercise  the  right  of  blockade  which  he  admit- 
tedly possesses,  and,  on  the  other  hand,  saves  neutrals  from 
exposure  to  the  drawbacks  of  blockade  at  a  great  distance, 
while  it  leaves  them  free  to  run  the  risk  which  they  knowingly 


458  BLOCKADE.  (Cll.  25 

incur  by  approaching  points  to  which  access  is  forbidden  by 
the  belHgerent."  *° 

It  was  also  provided  that  in  effect  this  area  of  operations 
would  be  extended  in  case  of  pursuit  of  a  vessel  which  had 
violated  or  attempted  to  violate  the  blockade: 

"Article  20.  A  vessel,  which  in  violation  of  blockade  has 
left  a  blockaded  port,  or  has  attempted  to  enter  the  port,  is 
liable  to  capture  so  long  as  she  is  pursued  by  a  ship  of  the 
blockading  force.  If  the  pursuit  is  abandoned,  or  if  the  block- 
ade is  raised,  her  capture  can  no  longer  be  effected." 

*o  Id.,  No.  5,  p.  41. 


§  201  CONTINUOUS  VOYAGE.  459 


CHAPTER  XXVI. 

CONTINUOUS  VOYAGE. 

201.     Continuous  Voyage. 

CONTINUOUS    VOYAGE. 

201.  (a)  By  the  doctrine  of  continuous  voyage,  as  lield  in  its 
extreme  form,  the  ultimate  destination,  regardless  of 
any  intermediate  destination  of  vessels  or  goods,  deter- 
mined their  treatment  on  the  seas  outside  of  neutral 
jurisdiction, 
(b)  By  the  Declaration  of  London,  1909  (article  30),  the 
doctrine  \iras  restricted  so  as  to  apply  to  absolute  con- 
traband  only. 

(a)  It  was  a  common  practice  of  the  eighteenth  century  to 
limit  the  carrying  trade  between  mother  country  and  the  de- 
pendencies to  domestic  vessels.  Many  states  still  impose  re- 
strictions upon  the  coasting  and  domestic  carrying  trade. 
When,  in  the  war  of  1756,  France  opened  to  the  Dutch  the 
trade  with  her  colonies  previously  confined  to  her  own  ves- 
sels, the  English  maintained  that  the  Dutch  vessels  thus 
engaged  were  practically  in  the  commercial  navy  of  France, 
and  liable  to  similar  treatment.  Dutch  vessels  were  accord- 
ingly captured  and  condemned.  There  were,  however,  va- 
rious treaties  prior  to  1756  by  the  provisions  of  which  one 
of  the  parties  to  the  treaty  was  to  be  permitted  in  time  of 
war  to  trade  at  ports  belonging  to  the  enemy  of  the  other 
party. ^  Freedom  of  trade,  which  had  been  a  matter  of  treaty 
agreement  in  early  years,  was  claimed  by  the  Armed  Neu- 
trality of  1780  as  a  matter  of  general  right.  The  British 
Orders  in  Council,  restricting  trade,  a  few  years  later,  met 
with  opposition.  Questions  arose  as  to  what  constituted  a 
voyage,  and  as  to  when  the  cargo  was  deposited,  and  at 
wliat  period  a  vessel  was  liable  to  capture.  In  the  case 
of  The  William,  Sir  William  Scott,  in  1805,  gave  full  con- 

1  Int.  Law  Topics,  U.  S.  Naval  War  College,  1905,  p.  77. 


460  CONTINUOUS   VOYAGE,  (Cll.  20 

sideration  to  the  cfuestion  of  the  termination  of  a  voyage,  and 
says  that,  "if  the  voyage  from  the  place  of  lading  be  not  really 
ended,  it  matters  not  by  what  acts  the  party  may  have  evinced 
his  desire  of  making  it  appear  to  have  ended."  ^ 

The  British  doctrine  of  continuous  voyage  was  gradually 
extended.  As  originally  enunciated  it  was  intended  to  apply 
to  comparatively  slow-moving  sailing  vessels.  The  aim  of  the 
rule  was  to  prevent  the  giving  of  aid  to  a  belligerent  by  a 
neutral.  It  is  undoubtedly  proper  for  one  belligerent  to  take 
measures  which  will  prevent  a  neutral  from  aiding  his  op- 
ponent in  his  warlike  undertaking.  Therefore  it  is  generally 
held  that  he  may  capture  and  confiscate  contraband  having  a 
belligerent  destination  or  seize  vessel  and  goods  bound  for  a 
blockaded  port.  The  question  of  destination  becomes  one  of 
great  importance.     It  is  undeniable  that  neutral  commerce  in 

2  What,  with  reference  to  this  subject,  is  to  be  considered  a  direct 
voyage  from  one  place  to  another?  Nobody  has  ever  supposed  that 
a  mere  deviation  from  the  straightest  and  a  shortest  course  in  which 
the  voyage  could  be  performed  would  change  its  destination  and  make 
it  cease  to  be  a  direct  one  within  the  intendment  of  the  instructions. 
Nothing  can  depend  on  the  degree  or  the  direction  of  the  deviation, 
whether  it  be  of  more  or  fewer  leagues,  whether  toward  the  coast 
of  Africa  or  toward  that  of  America.  Neither  will  it  be  contended 
that  the  point  from  which  the  commencement  of  a  voyage  is  to  be 
reckoned  changes  as  often  as  the  ship  stops  in  the  course  of  it.  Nor 
will  it  the  more  change  because  a  party  may  choose  arbitrarily,  by 
the  ship's  papers  or  otherwise,  to  give  the  name  of  a  distinct  voyage 
to  each  stage  of  a  ship's  progress.  The  act  of  shifting  the  cargo  from 
the  ship  to  the  shore  and  from  the  shore  bacli  again  to  the  ship  does 
not  necessarily  amount  to  the  termination  of  one  voyage  and  the 
commencement  of  another.  It  may  be  wholly  unconnected  with  any 
purpose  of  importation  into  the  place  where  it  is  done.  Supposing 
the  landing  to  be  merely  for  the  purpose  of  airing  or  drying  the 
goods,  or  of  repairing  the  ship,  would  any  man  think  of  describing 
the  voyage  as  beginning  at  the  place  where  it  happened  to  become 
necessary  to  go  through  such  a  process?  Again,  let  it  be  supposed 
that  the  party  has  a  motive  for  desiring  to  make  the  voyage  appear 
to  begin  at  some  other  place  than  that  of  the  original  lading,  and 
that  he  therefore  lands  the  cargo  purely  and  solely  for  the  purpose 
of  enabling  himself  to  affirm  that  it  was  at  such  other  place  that 
the  goods  were  taken  on  board,  would  this  contrivance  at  all  alter 
the  truth  of  the  fact?  Would  not  the  real  voyage  still  be  from  the 
place  of  the  original  shipment,  notwithstanding  the  attempt  to  give 


§  201)  CONTINUOUS   VOYAGE.  401 

goods  of  whatever  kind,  if  bona  fide  commerce  between  neu- 
tral ports,  cannot  be  interrupted. 

The  destination  of  the  vessel  is  usually  evident  from  the 
ship's  papers,  and  should  always  be  thus  shown.  If  the  port 
of  ultimate  destination  and  all  intermediate  ports  of  call  are 
neutral,  there  can  be  no  question  that  the  destination  is  neutral. 
If  any  port,  an  intermediate  or  ultimate  port,  is  belligerent,  the 
destination  is  considered  belligerent. 

As  a  general  rule  the  destination  of  the  cargo  is  held  to 
follow  the  destination  of  the  vessel.  This  might  be  said  to  be 
almost  the  sole  rule  for  determining  the  destination  of  cargo 
before  the  American  Civil  War.  At  that  time  new  positions 
began  to  be  taken.  These  positions  referred  back  to  English 
practice  in  the  war  with  France  for  support.  The  new  doc- 
trine separates  vessel  and  cargo,  and  considers  that  a  vessel 

it  the  appearance  of  having  begun  from  a  different  place?  The  truth 
may  not  always  be  discernible;  but,  when  it  is  discovered,  it  is  ac- 
cording to  the  truth,  and  not  according  to  the  fiction,  that  we  are  to 
give  to  the  transaction  its  character  and  denomination.  If  the  voy- 
age from  the  place  of  lading  be  not  really  ended,  it  matters  not  by 
what  acts  the  party  may  have  evinced  his  desire  of  making  it  appear 
to  have  ended.  That  those  acts  have  been  attended  with  trouble 
and  expense  cannot  alter  their  quality  or  their  effect.  The  trouble 
and  expense  may  weigh  as  circumstances  of  evidence  to  show  the  pur- 
pose for  which  the  acts  were  done;  but,  if  the  evasive  purpose  be 
admitted  or  proved,  we  can  never  be  bound  to  accept,  as  a  substitute 
for  the  observance  of  the  law,  the  means,  however  operose,  which 
have  been  employed  to  cover  a  breach  of  it.  Between  the  actual  im- 
portation by  which  a  voyage  is  really  ended,  and  the  colorable  im- 
portation which  is  to  give  it  the  appearance  of  being  ended,  there 
must  necessarily  be  a  great  resemblance.  The  acts  to  be  done  must 
be  almost  entirely  the  same ;  but  there  is  this  difference  between 
them:  The  landing  of  the  cargo,  the  entry  at  the  custom  house,  and 
the  payment  of  such  duties  as  the  law  of  the  place  requires,  are  neces- 
sary ingredients  in  a  genuine  importation.  The  true  purpose  of  the 
owner  cannot  be  effected  without  them.  But  in  a  fictitious  importa- 
tion they  are  mere  voluntary  ceremonies,  which  have  no  natural  con- 
nection whatever  with  the  purpose  of  sending  on  the  cargo  to  another 
market,  and  which,  therefore,  would  never  be  resorted  to  by  a  person 
entertaining  that  purpose,  except  with  a  view  of  giving  to  the  voyage, 
which  he  has  resolved  to  continue,  the  appearance  of  being  broken  by 
an  importation  which  he  has  resolved  not  really  to  make.  The  Wil- 
liam, 5  C.  Rob.  387. 


462  CONTINUOUS   VOYAGE.  (Cll.  20 

may  have  a  neutral  destination,  while  the  cargo  may  have  a 
belHgerent  destination,  or  that  the  cargo  may  be  bound  for  a 
blockaded  port,  while  the  vessel  upon  which  it  is  for  the  time 
being  has  a  neutral  destination. 

During  the  American  Civil  War  the  Supreme  Court,  refer- 
ring to  the  precedents  in  the  opinions  of  Lord  Stowell,  gave 
further  new  interpretations  to  the  principles  and  a  decided  ex- 
tension to  the  doctrine  of  continuous  voyage.  While  Lord 
Stowell  had  applied  the  doctrine  to  vessels  of  one  of  the  bellig- 
erents carrying  on  forbidden  trade  with  the  enemy,  the  United 
States  courts  extended  the  doctrine  to  neutral  vessels  and 
cargo  sailing  from  neutral  ports  with  intent  to  violate  block- 
ade, even  if  a  neutral  port  should  be  the  immediate  point 
toward  which  the  vessel  was  bound  with  the  intent  of  there 
interrupting  the  voyage.  Under  the  ordinary  rules  of  war  of 
the  time  the  vessel  and  cargo  would  be  liable  to  capture  when 
bound  directly  for  the  blockaded  port.  The  new  interpretation 
extended  the  liability  to  capture  to  the  voyage  between  the 
port  of  departure  and  the  neutral  port  of  call,  provided  the 
intent  to  proceed  to  the  blockaded  port  could  be  proven  to  exist 
during  the  earlier  stage  of  the  voyage. 

In  the  case  of  The  Circassian,  decided  in  1864,  it  was  af- 
firmed that : 

"A  vessel  sailing  from  a  neutral  port  with  intent  to  violate 
a  blockade  is  liable  to  capture  and  condemnation  as  a  prize 
from  the  time  of  sailing,  though  she  intend  to  call  at  another 
neutral  port,  not  reached  at  time  of  capture,  before  proceeding 
to  her  ulterior  destination."  ^ 

The  case  of  The  Springbok,  decided  in  the  United  States 
Supreme  Court  in  1866,  gave  full  extension  to  the  doctrine  of 
continuous  voyage.  This  vessel  sailed  from  London  December 
8,  1862,  on  a  voyage  ostensibly  for  Nassau.  The  vessel  was 
captured  before  reaching  that  port,  and  brought  into  New 
York,  where  she  was  libeled  as  prize.  The  District  Court  con- 
demned the  vessel  and  cargo  as  prize  of  war.  The  case  was 
appealed  to  the  Supreme  Court,  which  reversed  the  decree  as 
to  the  vessel,  and  affirmed  the  decree  as  to  the  cargo. 

The  summary  of  the  case  shows  that,  when  goods  destined 

8  2  Wall.  135,  17  L.  Ed.  796. 


§  201)  COXTINUOUS  VOYAGE.  463 

for  a  belligerent  are  in  transit  between  neutral  ports  in  a 
neutral  ship,  the  ship  is  liable  to  seizure  in  order  to  secure  the 
condemnation  of  the  goods,  but  itself  may  not  be  condemned 
as  prize. 

In  regard  to  the  cargo,  Mr.  Chief  Justice  Chase  gave  the 
opinion  of  the  court  that : 

"Upon  the  whole  case  we  cannot  doubt  that  the  cargo  was 
originally  shipped  with  the  intent  to  violate  the  blockade ;  that 
the  owners  of  the  cargo  intended  that  it  should  be  transshipped 
at  Nassau  into  some  vessel  more  likely  to  succeed  in  reaching 
a  blockaded  port  than  the  Springbok ;  that  the  voyage  from 
London  to  the  blockaded  port  was,  as  to  the  cargo,  both  in 
law  and  in  intent  of  the  parties,  one  voyage ;  and  that  the  lia- 
bility to  condemnation,  if  captured  during  any  part  of  the 
voyage,  attached  to  the  cargo  from  the  time  of  sailing."  * 

The  decisions  of  the  United  States  courts  relating  to  con- 
tinuous voyage  of  vessels  or  cargo  have  met  with  much  ad- 
verse criticism.^ 

4  5  Wall.  1,  18  L.  Ed.  480.  See,  also,  The  Stephen  Hart,  3  Wall.  559, 
18  L.  Ed.  220;  The  Peterhoff,  5  Wall.  28,  18  L.  Ed.  564;  The  Ber- 
muda, 3  Wall.  514,  18  L.  Ed.  200. 

5  Wharton,  In  an  editorial  note  (3  Digest  of  Int.  Law  of  the  United 
States,  p.  405),  says  of  the  Springbok  Case:  "The  decision  cannot  be 
accepted  without  discarding  those  rules  as  to  neutral  rights  for  which 
the  United  States  made  war  in  1812,  and  which,  except  in  The  Spring- 
bok and  cognate  cases,  the  executive  department  of  the  United  States 
government,  when  stating  the  law,  has  since  then  consistently  vindi- 
cated. The  first  of  these  is  that  blockades  must  be  of  specific  ports. 
The  second  is  that  there  can  be  no  confiscation  of  noncontraband 
goods  owned  by  neutrals  and  in  neutral  ships,  on  the  ground  that  it 
is  probable  that  such  goods  may  be,  at  one  or  more  intermediate 
ports,  transhipped  or  retranshipped,  and  then  find  their  way  to  a 
port  blockaded  by  the  party  seizing." 

Hall  says  of  the  decision:  "By  the  American  courts  this  idea  of 
continuous  voyage  was  seized  upon  and  applied  to  cases  of  contra- 
band and  blockade.  Vessels  were  captured  while  on  their  voyage 
from  one  neutral  port  to  another,  and  were  then  condemned  as  car- 
riers of  contraband  or  for  intent  to  break  blockade.  They  were  thus 
condemned,  not  for  an  act— for  the  act  done  was  in  itself  innocent, 
and  no  previous  act  existed  with  which  it  could  be  connected,  so  as 
to  form  a  noxious  whole — but  on  mere  suspicion  of  intention  to  do 
an  act.  Between  the  grounds  upon  which  these  and  the  English  cases 
were  decided  there  was,  of  course,  no  analogy.     The  American  deci- 


464  CONTINUOUS  VOYAGE.  (Ch.  26 

The  British  Manual  of  Naval  Prize  Law  (1888)  states: 
"The  ostensible  destination  of  the  vessel  is  sometimes  a  neu- 
tral port,  while  she  is  in  reality  intended,  after  touching,  and 
even  landing  and  colorably  delivering  over  her  cargo  there,  to 
proceed  with  the  same  cargo  to  an  enemy  port.  In  such  a  case 
the  voyage  is  held  to  be  'continuous,'  and  the  destination  is 
held  to  be  hostile  throughout."  ®  The  same  manual  also  pro- 
vided that,  "if  the  destination  of  the  vessel  be  neutral,  then 
the  destination  of  the  goods  on  board  should  be  considered 
neutral,  notwithstanding  it  may  appear  from  the  papers  or  oth- 
erwise that  the  goods  themselves  have  an  ulterior  hostile  des- 
tination, to  be  attained  by  transshipment,  overland  convey- 
ance, or  otherwise."  This  section  of  the  Naval  Prize  Law  was 
brought  to  a  test  by  the  seizure  during  the  South  African 
War,  in  December,  1899,  and  January,  1900,  of  three  German 
vessels,  the  Herzog,  the  General,  and  the  Bundesrath.  These 
vessels  were  carrying  supplies  to  the  neutral  port  of  Lourengo 
Marquez  on  Delagoa  Bay,  which  was  connected  by  rail  with 
the  South  African  Republic.  Great  Britain  asserted  the  right 
to  visit  and  search  these  vessels.  The  German  government 
protested  "that,  whatever  there  may  have  been  on  board  the 
Bundesrath,  there  could  have  been  no  contraband  of  war, 
since,  according  to  the  recognized  principles  of  international 
law,  there  cannot  be  contraband  of  war  in  trade  between  neu- 
tral ports,"  and  called  attention  to  the  section  of  the  Manual 


sions  have  been  universally  reprobated  outside  the  United  States,  and 
would  probably  now  find  no  defenders  in  their  own  country."  Int. 
Law  (5th  Ed.)  p.  669. 

A  committee  of  the  Institute  of  International  Law  said: 

"That  the  theory  in  question  must  be  regarded  as  a  serious  inroad 
upon  the  rights  of  neutral  nations,  inasmuch  as  the  fact  of  the  des- 
tination of  a  neutral  vessel  to  a  neutral  port  would  no  longer  suf- 
fice of  itself  to  prevent  the  capture  of  goods  noncontraband  on  board. 

"That,  furthermore,  the  result  would  be  that,  as  regards  blockade, 
every  neutral  port  to  which  a  neutral  vessel  might  be  carrying  a 
neutral  cargo  would  become  constructively  a  blockaded  port,  if  there 
were  the  slightest  gromid  for  suspecting  that  the  cargo,  after  being 
unladen  in  such  neutral  port,  was  intended  to  be  forwarded  in  some 
other  vessel  to  some  port  actually  blockaded." 

For  this  and  other  extended  discussion,  see  7  Moore,  §§  1256-1262. 

«  No.  71.  p.  22. 


§  201)  CONTINUOUS   VOYAGE.  465 

of  Naval  Prize  Law,  to  the  effect  that  "the  destination  of  the 
vessel  is  conclusive  as  to  the  destination  of  the  goods  on 
board."    Lord  Salisbury  replied  that: 

"In  the  opinion  of  Her  Majesty's  government  the  passage 
cited  from  the  manual  'that  the  destination  of  the  vessel  is 
conclusive  as  to  the  destination  of  the  goods  on  board,'  has  no 
application  to  such  circumstances  as  had  now  arisen. 

"It  cannot  apply  to  contraband  of  war  on  board  of  a  neu- 
tral vessel,  if  such  contraband  was  at  the  time  of  seizure  con- 
signed or  intended  to  be  delivered  to  an  agent  of  the  enemy  at 
a  neutral  port,  or,  in  fact,  destined  for  the  enemy's  country. 

"The  true  view  in  regard  to  the  latter  category  of  goods  is, 
as  Her  Majesty's  government  believe,  correctly  stated  in  para- 
graph 813  of  Professor  Bluntschli's  'Droit  International  Codi- 
fie'  (French  translation  of  1874,  second  edition  of  the  work 
of  this  eminent  German  jurist) :  'Si  les  navires  ou  mar- 
chandises  ne  sont  eypedies  a  destination  d'un  port  neutre 
que  pour  mieux  venir  en  aide  a  I'ennemi,  il  y  aura  contrebande 
de  guerre  et  la  confiscation  sera  justifiee.' 

"Her  Majesty's  government  are  unable,  therefore,  to  agree 
that  there  are  grounds  for  ordering  the  release  of  the  Bund- 
esrath  without  examination  by  the  prize  court  as  to  whether 
she  was  carrying  contraband  of  war  belonging  to  or  destined 
for  the  South  African  republics.  But  they  fully  recognize 
how  desirable  it  is  that  this  examination  should  be  carried 
through  at  the  earliest  possible  moment,  and  that  all  proper 
consideration  should  be  shown  for  the  owners  and  for  inno- 
cent passengers  and  merchandise  on  board  of  her.  Repeated 
and  urgent  instructions  have  been  sent  by  telegraph  for  this 
purpose,  and  arrangements  have  been  made  for  the  speedy 
transmission  of  the  mails."  ^ 

After  examination  of  these  German  vessels  they  were  re- 
leased. The  British  government  paid  compensation  for  the 
delay.  Atlay,  stating  his  opinion  in  his  edition  of  Hall's  In- 
ternational Law,  says  that,  if  a  similar  case  again  arises,  "I 
venture  to  think  that  the  attitude  of  whatever  British  govern- 
ment may  be  in  office  will  tend  rather  to  the  views  expressed 
by  Lord  Salisbury  than  to  those  enunciated  by  Mr.  Hall,  and 

7  Parliamentary  Papers,  Africa,  No.  1  (1900). 

WiLS.lNT.L.— 30 


466  CONTINUOUS   VOYAGE,  (Cll.  2G 

that  the  destination  of  the  cargo,  not  merely  the  destination  of 
the  vessel,  will  be  the  criterion."  * 

Another  case  where  the  second  stage  of  transportation  was 
by  land  rather  than  by  water,  as  in  the  case  of  the  Springbok, 
was  the  case  of  the  Doehvyk,  a  Dutch  vessel  captured  by  the 
Italian  cruiser  Etna,  August  8,  1896,  during  the  war  between 
Italy  and  Abyssinia.  The  Italian  court  condemned  vessel  and 
cargo.  This  decision  has  also  met  with  much  unfavorable 
criticism. 

The  Institute  of  International  Law  in  1896  adopted  a  rule 
in  regard  to  continuous  voyage  to  the  effect  that  enemy  desti- 
nation could  be  presumed  in  spite  of  transport  to  an  inter- 
mediate neutral  port,  provided  there  was  ample  evidence  of 
final  enemy  destination.® 

The  Japanese  Regulations  Governing  Captures  at  Sea, 
March  7,  1907,  provide:  "Art.  17.  In  case  of  a  ship,  the  des- 
tination of  which  is  not  the  enemy's  territory,  whether  she 
calls  at  that  destination  and  discharges  cargo  or  not,  if  there 
is  reason  to  believe  that  the  cargo  in  question  is  being  con- 
veyed to  the  enemy's  territory,  her  voyage  shall  be  regarded 
as  a  continuous  voyage,  and  her  destination  shall  be  held  to 
have  been,  from  the  commencement,  the  enemy's  territory." 
The  same  regulations  provided  that  the  destination  of  the  ship 
is  the  destination  of  the  cargo. 

The  change  in  the  means  and  methods  of  transportation  has 
made  new  regulations  necessary.  With  the  increased  oppor- 
tunity for  easy  and  quick  intercourse  between  the  enemy  and 
neutral  ports  has  come  a  corresponding  danger  to  the  other 
belligerent.  Against  this  danger  he  must  have  an  increased 
ability  to  protect  himself.  It  has  sometimes  been  stated  that 
the  application  of  the  doctrine  of  continuous  voyage  limits  the 
freedom  of  neutral  commerce.  The  trade  in  contraband  is 
undertaken  in  time  of  war  particularly  because  of  the  excep- 
tional profits.     The  profits  of  successful  trade  in  contraband 

8  Hall,  Int.  Law  (5th  Ed.)  p.  671. 

9  "La  destination  pour  I'ennemi  est  presumee  lorsque  le  transport 
va  a,  Tun  de  ses  ports,  on  bien  h  un  port  ueutre  qui,  d'apres  des 
preuves  fividentes  et  de  fait  incontestable,  n'est  qu'une  etape  pour 
I'ennemi,  comma  but  final  de  la  meme  operation  commerclale." 

15  Annuaire  de  I'lnstltut  (1S9G),  p.  231. 


§  201)  CONTINUOUS   VOYAGE.  .467 

articles  at  such  a  time  are  exceptional,  because  the  possession 
of  such  articles  by  the  one  belligerent  gives  him  an  advantage 
over  the  other  belligerent  which  he  would  not  otherwise  have. 
For  this  advantage  he  is  willijng  to  pay  a  war  price.  The  neu- 
tral furnishing  him  this  advantage  should  not  be  permitted  to 
act  with  impunity,  nor  is  it  reasonable  that  the  other  belligerent 
should  be  required  to  permit  such  action.  The  whole  transac- 
tion would  be  contrary  to  the  spirit  of  the  laws  of  neutrality, 
and  would  simply  serve  to  mask  an  unneutral  act  under  the 
form  of  a  legitimate  transaction.  There  is  no  reason  to  re- 
gard a  voyage  as  more  legitimate  because  made  more  cir- 
cuitously.  The  number  of  stopping  places  does  not  necessarily 
change  the  ultimate  destination  of  a  vessel,  nor  the  number  of 
transshipments  the  destination  of  its  cargo.  The  present 
tendency  of  opinion  seems  to  be  toward  a  recognition  of  a  rea- 
sonable and  clearly  defined  doctrine  of  continuous  voyage. 
■'This  means  that  the  vessel  and  cargo  may  be  captured  wher- 
ever such  vessel  and  cargo  may  be  found  outside  of  neutral 
jurisdiction,  in  case  there  is  ample  evidence  of  destination  to 
a  blockaded  port,  and  that  the  interposition  of  a  neutral  port 
of  call  does  not,  whatever  acts  may  there  be  performed,  change 
the  destination.  This  also  means  the  treatment  of  the  cargo 
is  to  be  determined  by  its  actual  destination  at  the  time  of 
visit.  It  makes  no  difference  whether  a  cargo  destined  for  the 
enemy  is  carried  on  a  final  stage  of  its  journey  by  overland  or 
oversea  transportation,  the  destination  of  the  cargo  is  the  es- 
sential fact,  not  the  means  by  which  it  may  reach  its  destina- 
tion. Of  course,  the  belligerent  is  always  liable  for  any 
seizures  which  may  be  made  of  vessels  and  cargoes  having 
innocent  destinations,  and  for  improper  seizures  damages  must 
be  paid.  Ample  evidence  would  therefore  be  necessary  to  jus- 
tify seizure."  ^° 

(b)  The  question  of  the  application  of  the  doctrine  of  con- 
tinuous voyage  was  one  upon  which  great  diversity  of  opinion 
existed  at  the  International  Naval  Conference  in  1908-09.  It 
was  at  length  decided  that  the  doctrine  could  not,  without 
grave  dangers  to  neutral  rights,  and  only  with  questionable 
military  advantages,  be  applied  to  conditional  contraband,  and 

10  Int.  Law  Topics,  U.  S.  Naval  War  College,  1905,  p.  106, 


468  CONTINUOUS  VOYAGE.  (Ch.  26 

that  with  the  limitation  of  the  right  of  capture  for  breach  of 
blockade  to  the  "area  of  operations"  it  would  be  of  little,  if  of 
any,  service  as  applied  to  blockade. 

It  was,  however,  definitely  recognized  as  applicable  to  ab- 
solute contraband,  and  a  positive  rule  was  enunciated  in  this 
regard : 

"Article  30.  Absolute  contraband  is  liable  to  capture  if  it  is 
shown  to  be  destined  to  territory  belonging  to  or  occupied  by 
the  enemy,  or  to  the  armed  forces  of  the  enemy.  It  is  imma- 
terial whether  the  carriage  of  the  goods  is  direct,  or  entails 
either  transshipment  or  transport  over  land."  ^* 

1 1  Appendix,  p.  579. 


§  202)  UNNEUTRAL   SERVICE.  469 

CHAPTER  XXVII. 
UNNEUTRAL  SERVICE. 

202.  Unneutral  Service  Defined. 

203.  Scope. 

204.  Penalty. 

UNNEUTRAL   SERVICE   DEFINED. 

202.  A  neutral,  acting  in  snch  manner  as  to  identify  Iiimself 
\pit!i  the  belligerent,  is  guilty  of  unneutral  service,  and 
liable  to  the  penalties  'wbieb  an  enemy  may  receive 
under  similar  circumstances. 

For  a  long  time  it  was  common  to  attempt  to  bring-  certain 
acts  which  a  neutral  should  not  as  a  neutral  undertake  under 
some  phase  of  the  doctrine  of  contraband.  It  was  natural 
that  this  attempt  should  be  made,  as  the  idea  of  contraband 
was  well  developed  before  the  modern  idea  of  neutrality  was 
clearly  defined.  Hall  uses  the  term  "Analogues  of  Contra- 
band," but  admits  that  for  such  services  as  he  thus  denomi- 
nates the  analogy  to  contraband  is  "always  remote,"  and  fur- 
ther says :  "They  are  invariably  something  distinctly  more, 
or  something  distinctly  less,  than  the  transport  of  contraband 
amounts  to."  ^ 

"Whatever  the  name,  a  considerable  range  of  actions,  in- 
volving neither  the  doctrine  of  contraband  nor  the  doctrine  of 
blockade,  should  have  some  distinguishing  name.  Various 
names  have  been  from  time  to  time  given  to  some  of  these  ac- 
tions, such  as  'accidental  contraband,'  'analogues  of  contra- 
band,' 'enemy  service,'  'unneutral  service,'  etc.  The  terms  in- 
volving the  use  of  the  word  'contraband'  are  admittedly  inap- 
propriate and  forced.  The  term  'enemy  service'  would  be  am- 
biguous, because  often  used  in  a  sense  not  involving  any  of 
the  actions  here  discussed.  The  phrase  'unneutral  service' 
seems  to  be  the  least  ambiguous  and  most  distinctly  descriptive. 
The  decisions  of  the  courts  and  the  opinions  of  writers  point 
clearly  to  the  fact  that  it  is  the  nature  of  the  service  which 

1  Hall,  Int.  Law  (5th  Ed.)  p.  673. 


470  UNNEUTRAL  SKKVICB.  (Ch.  27 

must  be  considered  in  certain  cases,  while  the  nature  and  des- 
tination of  the  goods  in  case  of  contraband,  and  the  mihtary 
condition  of  the  place  in  the  case  of  blockade,  determines  the 
penalties."  ^ 

SCOPE    OF   UNNEUTRAIi    SERVICE. 

203.    Unneutral  service  in  general  includes  the  folloiving  acts, 
ivlien  undertaken  by  a  neutral  for  a  belligerent: 

(a)  The  carriage  of  enemy  persons. 

(b)  The  transmission  of  intelligence  in  the  interest  of  the 

enemy. 

(c)  Aid  by  auxiliary  coal,  repair,  supply,  transport,  or  other 

vessels. 

(d)  Other  service  directly  in  aid  of,  or  under  orders  or  con- 

trol of,  the  belligerent. 

(a)  The  carriage  of  enemy  persons  has  been  distinctly  rec- 
ognized as  an  act  differing  from  the  carriage  of  contraband. 
In  the  case  of  The  Orozembo,  an  American  merchant  vessel 
was  chartered  by  a  merchant  at  Lisbon,  ostensibly  to  proceed 
in  ballast  to  Macao,  and  thence  to  take  a  cargo  to  America. 
She  was  specially  fitted  up  for  the  carriage  of  passengers. 
Three  Dutch  officers  of  rank,  and  two  persons  of  the  civil 
service  in  the  government  of  Batavia,  with  some  others,  were 
received  on  board,  and  the  vessel  actually  sailed  for  Batavia. 
The  vessel  was  condemned  by  the  English  courts  upon  the 
facts,  because  it  was  assumed  that  a  contract  had  been  entered 
into  with  the  Dutch  government  before  the  vessel  left  Rotter- 
dam. In  the  case  of  The  Friendship,  the  vessel  was  con- 
demned upon  the  ground  that  she  was  employed  as  a  trans- 
port ;  the  facts  being  that  she  was  not  allowed  to  take  cargo, 
but  shipped  some  eighty  French  sailors,  who  had  been  ship- 
wrecked, and  the  passage  was  paid  for  by  the  French  govern- 
ment, thus  rendering  them,  not  ordinary  passengers,  but  mem- 
bers of  the  French  navy,  being  transported  from  the  United 
States  to  France.^ 

2  Wilson,  Unneutral  Service,  Proceedings  American  Pol.  Sci.  Ass'n 
(1904)  73.  The  French  equivalent  of  the  term  "unneutral  service"  is 
"assistance  hostile." 

3  The  Orozembo,  6  C.  Rob.  430 ;  The  Friendship,  Id.  420 ;  The  Car- 
olina. 4  C.  Rob.  2.56;  Yangtsze  Ins.  Ass'n  v.  Indemnity  Mutual  Marine 
Ins.  Co.,  [1908]  1  K.  B.  910. 


§  203)  SCOPE   OF  UNNEUTRAL   SERVICE.  471 

(b)  The  carriage  of  dispatches  by  a  neutral  in  the  service  of 
a  belHgerent  differs  from  the  ordinary  carriage  of  contraband 
of  war.  In  the  case  of  the  carriage  of  dispatches  the  vessel  is 
employed  in  the  service  of  the  belligerent,  and  the  loss  of  the 
dispatches  or  persons  would  inflict,  as  a  rule,  no  punishment 
upon  the  carrier.  In  the  case  of  contraband  goods,  on  the 
other  hand,  there  is  no  presumption  of  intended  aid  to  the 
enemy,  and  the  loss  of  the  goods  confiscated; — causing,  as  it 
does,  a  pecuniary  loss — acts  as  a  sufficient  deterent.  The 
transporting  of  diplomatic  dispatches  knowingly  by  a  neutral 
does  not  entail  a  penalty,  since  it  is  not  regarded  as  an  unneu- 
tral act,  and  it  is  the  policy  of  nations  to  maintain  diplomatic 
relations  undisturbed  by  wars.  Under  the  Hague  Convention 
of  1907  the  ordinary  postal  correspondence  is  exempt  from 
unnecessary  interference,  "whatever  its  official  or  private  char- 
acter may  be,"  unless  proceeding  to  or  from  a  blockaded  port. 
The  exemption  does  not  extend  to  the  vessel  carrying  the 
mail,  though  the  vessel  should  be  interfered  with  as  little  as 
possible.*  The  right  of  a  belligerent  to  take  noxious  persons 
from  an  innocent  neutral  vessel  arose  in  the  celebrated  case  of 
the  Trent.  The  facts  in  this  case,  briefly,  are  that  in  1861  the 
Confederate  government  appointed  Mr.  Mason  to  England 
and  Mr.  Slidell  to  France,  ostensibly  as  ministers,  although 
not  in  reality  such,  because  the  Confederate  government  had 
not  at  that  time  been  recognized,  further  than  as  a  belligerent, 
and  had  no  authority  to  maintain  diplomatic  relations.  They 
took  passage  in  the  Trent — a  regular  steamer  (British)  carry- 
ing the  mails — from  Havana  to  Nassau,  en  route  to  Europe. 
A  short  distance  out  from  Havana  this  vessel  was  overhauled 
by  a  United  States  vessel  of  war  (the  San  Jacinto,  Capt. 
Wilkes),  and,  after  search,  Messrs.  Mason,  Slidell,  and  their 
secretaries  were  taken  from  the  British  vessel,  and  carried  to 
the  United  States,  while  the  Trent  was  permitted  to  pursue  her 
course.  The  dispatches  of  these  gentlemen  were  concealed 
by  them  among  the  passengers,  and  were  not  discovered. 
There  was  nothing  to  connect  the  crew  with  the  concealment 
of  the  dispatches.  Immediately  upon  receipt  in  England  of 
information  of  the  action  of  Capt.  Wilkes,  demand  was  made 

4  rjght  of  Capture  in  Naval  War,  arts.  I,  II,  Scott,  Hague  Confer- 
ences, p.  282. 


472  UNNEUTRAL  SERVICE.  (Ch.  27 

for  the  release  of  the  Confederate  representatives  and  for  a 
suitable  apology  on  the  part  of  the  United  States.  The  men 
were  released  by  the  United  States,  on  the  ground  that  the 
representatives  should  not  have  been  taken  from  the  vessel, 
but  that  the  vessel  should  have  been  brought  to  port.'^  The 
British  Manual  of  Naval  Prize  Law  provides  that  the  com- 
mander will  not  be  justified  in  taking  enemy  persons  from 
neutral  vessels,  but  should  send  the  vessel  to  port  for  adjudi- 
cation.* Similar  provision  is  made  in  regard  to  dispatches.'^ 
A  method  of  aiding  the  enemy  by  carriage  or  transmission 
of  dispatches,  which  may  be  of  greatest  service,  is  by  repeti- 
tion of  messages  or  signals.  The  hostile  character  of  this 
service  was  recognized  by  Sir  William  Scott  in  the  case  of 
The  Atalanta  in  1808.  "If  vv^ar  intervenes,  and  the  other  bel- 
ligerent prevails  to  interrupt  that  communication  (between 
mother  country  and  colony),  any  person  stepping  in  to  lend 
himself  to  effect  the  same  purpose,  under  the  privilege  of  an 
ostensible  neutral  character,  does  in  fact  place  himself  in  the 
service  of  the  enemy  state,  and  is  justly  to  be  considered  in 

5  7  Moore,  §  1265,  gives  the  main  points  at  issue  as  shown  by  the 
correspondence. 

6  Under  the  head,  "Neutral  Vessels  Acting  in  the  Service  of  the 
Enemy,"  the  British  Manual  of  Naval  Prize  Law  states: 

"88.  A  commander  should  detain  any  neutral  vessel  which  is  being 
actually  used  as  a  transport  for  the  carriage  of  soldiers  or  sailors  by 
the  enemy. 

"89.  The  vessel  should  be  detained,  although  she  may  have  on  board 
only  a  small  number  of  enemy  officers,  or  even  of  civil  officials  sent 
out  on  the  public  service  of  the  enemy,  and  at  the  public  expense. 

"90.  The  carriage  of  ambassadors  from  the  enemy  to  a  neutral 
state,  or  from  a  neutral  state  to  the  enemy,  is  not  forbidden  to  a  neu- 
tral vessel,  for  the  detention  of  which  such  carriage  is  therefore  no 
cause. 

"91.  It  will  be  no  excuse  for  carrying  enemy  military  persons  that 
the  master  is  ignorant  of  their  character. 

"92.  It  will  be  no  excuse  that  he  was  compelled  to  carry  such  per- 
sons by  duress  of  the  enemy." 

7  "104.  The  commander  will  not  be  justified  in  taking  out  of  a  ves- 
sel any  enemy's  dispatches  he  may  have  found  on  board,  and  then 
allowing  the  vessel  to  proceed.  His  duty  is  to  detain  the  vessel  and 
send  ber  in  for  adjudication,  together  with  the  dispatches  on  board." 
Id.  p.  28. 


§  203)  SCOPE   OF   UNNEUTRAL   SERVICE.  473 

that  character.  Nor  let  it  be  supposed  that  it  is  an  act  of  light 
and  casual  importance.  The  consequence  of  such  a  service  is 
indefinite,  infinitely  beyond  the  effect  of  any  contraband  that 
can  be  conveyed.  The  carrying  of  two  or  three  cargoes  of 
stores  is  necessarily  an  assistance  of  limited  nature ;  but  in 
the  transmission  of  dispatches  may  be  conveyed  the  entire  plan 
of  the  campaign,  that  may  defeat  all  the  projects  of  the  other 
belligerent  in  that  quarter  of  the  world.  *  *  *  The  prac- 
tice has  been,  accordingly,  that  it  is  in  considerable  quantities 
only  that  the  ofifense  of  contraband  is  contemplated.  The  case 
of  dispatches  is  very  different.  It  is  impossible  to  limit  a 
letter  to  so  small  a  size  as  not  to  be  capable  of  producing  the 
most  important  consequences  in  the  operations  of  the  enemy. 
It  is  a  service,  therefore,  which,  in  whatever  degree  it  exists, 
can  only  be  considered  in  one  character,  as  an  act  of  the  most 
noxious  and  hostile  nature."  * 

Acts  by  neutrals  in  the  nature  of  service  to  the  enemy  were 
often  recognized  by  the  courts  as  a  distinct  category  during  the 
first  half  of  the  nineteenth  century.®  Dana,  in  a  note  to 
Wheaton,  recognizes  that  such  acts  are  of  an  entirely  different 
character  from  the  carriage  of  contraband.  "Suppose  a  neu- 
tral vessel  to  transmit  signals  between  two  portions  of  a  fleet 
engaged  in  hostile  combined  operations,  and  not  in  sight  of 
each  other.  She  is  doubtless  liable  to  condemnation.  It  is 
immaterial  whether  these  squadrons  are  at  sea,  or  in  ports  of 
their  own  country,  or  in  neutral  ports,  or  how  far  they  are 
apart,  or  how  important  the  signals  actually  transmitted  may 
be  to  the  general  results  of  the  war,  or  whether  the  neutral 
transmits  them  directly  or  through  a  repeating  neutral  vessel. 
The  nature  of  the  communication  establishes  its  final  destina- 
tion, and  it  is  immaterial  how  far  the  delinquent  carries  it  on 
its  way.  The  reason  of  the  condemnation  is  the  nature  of  the 
service  in  which  the  neutral  is  engaged."  ^°  With  the  develop- 
ment of  telegraphy,  particularly  of  wireless  telegraphy,   the 

8  6  C.  Rob.  440. 

9  Tbe  Julia,  8  Cranch,  181,  3  L.  Ed.  528;  The  Aurora,  8  Cranch, 
203,  3  L.  Ed.  536;  The  Hiram,  8  Cranch,  444,  3  L.  Ed.  619;  The 
Ariadue,  2  Wheat.  143,  4  L.  Ed.  205. 

10  Wheaton,  Int.  Law  (8th  Ed.)  p.  228,  note. 


474  UNNEUTRAL  SERVICE.  (Cll.  27 

recognition  of  the  category  of  unneutral  service  has  become 
even  more  essential. 

(c)  In  recent  times  a  large  range  of  action  has  opened  to 
neutrals  in  aiding  a  belligerent  through  auxiliary  coal,  repair, 
supply,  transport,  and  cable  ships,  and  similar  vessels.  Such 
vessels  are  engaged  in  action,  distinctly  unlike  the  commercial 
undertaking  of  the  carriage  of  contraband.  As  Hall  says,  it 
"is  something  distinctly  more"  than  the  transport  of  contra- 
band. It  is  common  in  modern  proclamations  to  prohibit  such 
service,  and,  if  captured,  vessels  engaged  in  such  service  are 
regarded  liable  to  treatment  as  enemy  vessels. 

(d)  Other  service  directly  in  aid  of  the  enemy  is  prohibited. 
The  Hague  Convention  of  1907  provides  that : 

"A  neutral  cannot  avail  himself  of  his  neutrality: 

"(a)  If  he  commits  hostile  acts  against  a  belligerent. 

"(b)  If  he  commits  acts  in  favor  of  a  belligerent,  particu- 
larly if  he  voluntarily  enlists  in  the  ranks  of  the  armed  force 
of  one  of  the  parties."  ^^ 

It  was  formerly  the  opinion  that  pilotage  of  a  belligerent 
fleet  by  a  neutral  might  be  regarded  as  unneutral  service.  It 
was  provided  at  The  Hague  in  1907,  however,  that  "a  neutral 
power  may  allow  belligerent  warships  to  employ  its  licensed 
pilots."  ^2 

PENALTY   FOR   UNNEUTRAL    SERVICE. 

204.  The  penalty  for  unneutral  service  is  in  general  tlie  same 
as  tliat  to  which  an  enemy  Avould  be  liable  under  sim- 
ilar conditions. 

The  neutral  agent  identifies  himself  with  the  belligerent. 
and  is  liable  to  the  treatment  which  his  assumed  character  in- 
volves. He  may  be  made  a  prisoner  of  war,^''  and  the  means 
by  which  he  acts   is  liable  to  seizure,   confiscation,  or  other 

^  1  PviLdits  and  Duties  of  Neutral  Powers  aud  Persons,  art.  XVII, 
Appendix,  p.  548. 

12  Neutral  Powers  in  Naval  War,  art.  XI,  Appendix,  p.  564. 

13  While,  in  general,  the  officers  and  crews  of  captured  neutral  ves- 
sels are  not  made  prisoners  of  war,  this  exemption  "does  not  apply 
to  ships  taking  part  in  the  hostilities."  Right  of  Capture  in  Naval 
War,  c.  Ill,  Scott,  Hague  Conventions,  p   283. 


§  204)  PENALTY    FOR   UNNEUTRAL    SERVICB.  475 

treatment  which  would  render  it  incapable  of  further  unneu- 
tral service.^*  The  Russian  Declaration  of  February  14,  1904, 
states  that :  "There  are  assimilated  to  contraband  of  war  the 
following  acts,  forbidden  to  neutrals :  The  transport  of 
enemy  troops,  the  dispatches  or  correspondence  of  the  enemy, 
the  furnishing  of  transports  or  ships  of  war  to  the  enemy. 
Neutral  vessels  guilty  of  forbidden  acts  of  this  character  may 
be,  according  to  circumstances,  seized  and  confiscated." 

It  is  evident  that  a  neutral  repair  vessel  or  a  neutral  collier, 
accompanying  and  serving  a  belligerent  fleet,  has  so  far  for- 
feited its  neutral  character  as  to  make  it  and  its  personnel 
liable  to  the  treatment  that  would  be  accorded  to  a  belligerent 
vessel  serving  in  the  same  capacity.  Professor  Lawrence  says 
of  carrying  contraband  in  contrast  to  unneutral  service : 

"They  are  unlike  in  nature,  unlike  in  proof,  and  unlike  in 
penalty.  To  carry  contraband  is  to  engage  in  an  ordinary  trad- 
ing transaction,  which  is  directed  toward  a  belligerent  com- 
munity simply  because  a  better  market  is  likely  to  be  found 
there  than  elsewhere.  To  perform  unneutral  service  is  to 
interfere  in  the  struggle  by  doing  in  aid  of  a  belligerent  acts 
which  are  in  themselves  not  mercantile,  but  warlike.  In  order 
that  a  cargo  of  contraband  may  be  condemned  as  a  good  prize, 
the  captors  must  show  that  it  was  on  the  way  to  a  belligerent 
destination.  If,  without  subterfuge,  it  is  bound  to  a  neutral 
port,  the  voyage  is  innocent,  whatever  may  be  the  nature  of 
the  goods.  In  the  case  of  unneutral  service,  the  destination 
of  the  captured  vessel  is  immaterial.  The  nature  of  her  mis- 
sion is  the  all-important  point.  She  may  be  seized  and  con- 
fiscated when  sailing  between  two  neutral  ports.  The  penalty 
of  carrying  contraband  is  the  forfeiture  of  the  forbidden 
goods ;  the  ship  being  retained  as  prize  of  war  only  under 
special  circumstances.  The  penalty  for  unneutral  service  is 
first  and  foremost  the  confiscation  of  the  vessel ;  the  goods  on 
board  being  condemned  when  the  owner  is  involved,  or  when 
fraud  and  concealment  have  been  resorted  to. 

"Nothing  but  confusion  can  arise  from  attempting  to  treat 
together  offenses  so  widely  divergent  as  the  two  now  under 
consideration."  ^^ 

14  Dupuis,  La  Guerre  Maritime,  p.  2S2. 
le  Principles  of  Int.  Law,  p.  G33. 


476  UNNEUTRAL  SERVICE.  (Cll.  27 

The  Declaration  of  London,  1909,  recognized  the  distinction 
between  unneutral  service  and  the  carriage  of  contraband,  or 
violation  of  blockade,  and  made  specific  provision  for  penal- 
ties  for  certain  cases  of  unneutral  service. 

This  Declaration  (article  45)  makes  liable  to  the  same  treat- 
ment as  for  carriage  of  contraband : 

(1)  A  neutral  vessel  which  specifically  engages  in  the  trans- 
port of  individuals  of  the  enemy's  armed  forces  or  in  the  trans- 
mission of  intelligence  in  the  interest  of  the  enemy. 

(2)  A  neutral  vessel  which,  with  the  knowledge  of  those  in 
control,  transports  an  enemy  military  detachment  or  persons 
who  during  the  voyage  directly  assist  the  enemy  operations. 

The  Declaration  (article  46)  assimilates  a  neutral  vessel  to 
an  enemy  merchant  vessel : 

(1)  If  she  takes  direct  part  in  the  hostilities. 

(2)  If  she  is  under  control  of  the  enemy  authority. 

(3)  If  she  is  exclusively  in  the  enemy  employment. 

(4)  If  she  is  exclusively  engaged  in  transport  of  enemy 
troops  or  transmission  of  enemy  intelligence.^* 

i«  Appendix,  p.  581. 


§  205)  PEiZK.  477 

CHAPTER  XXVIII. 

PRIZE. 

205.  Prize. 

206.  National  Prize  Court. 

207.  International   Prize   Court. 

PRIZE. 

205.    "Prize  is  generally  used  as  a  teclinical  term  to  express 
a   legal   capture."  i 

While  in  early  days  prize  was  regarded  as  belonging  to  the 
person  who  made  the  capture,  in  modern  warfare  prize  is  re- 
garded as  belonging  to  the  state.^  Capture  should  be  estab- 
lished by  some  act  indicative  of  the  intention  to  take  posses- 
sion.^ The  right  to  capture  naval  stores  as  prize,  even  though 
at  a  naval  station,  has  been  maintained.*  Non-seagoing  boats 
propelled  by  poling,  boats  on  remote  inland  waters,  and  boats 
without  means  of  propulsion  are  not  considered  as  liable  to 
capture  as  prize  of  war.^  Private  property  on  land  is  not  the 
subject  of  maritime  prize.®  The  domicile  of  the  owner  or  of 
the  house  of  trade  is  usually  held  to  establish  the  liability  to 
capture  in  states  following  the  Anglo-Saxon  jurisprudence 
and  in  some  of  the  continental  states,  while  other  continental 
states  adopt  the  principle  of  nationality  of  the  owner  as  de- 
termining the  liability  of  the  property.'^  Property  captured 
at  sea,  however,  can  never  be  converted  till  after  adjudication, 
and  must  so  far  as  possible  be  maintained  in  a  condition  equal 


1  Miller  v.  The  Resolution,  2  Dall.  1,  1  L.  Ed.  263. 

2  The  Adventure,  8  Crauch,  221,  3  L.  Ed.  542 ;   The  Siren  v.  United 
States,  7  Wall.  163,  19  L.  Ed.  129. 

3  The  Grotius,  9  Cranch,  368,  3  L.  Ed.  762. 

4  United  States  v.  Dewey,  188  U.  S.  254,  23  Sup.  Ct.  415,  47  L.  Ed. 
463. 

5  The  Cotton  Plant  v.  United  States,  10  Wall.  577,  19  L.  Ed.  983; 
United  States  v.  Dewey,  188  U.  S.  254,  23  Sup.  Ct.  415,  47  L.  Ed.  463. 

6  United  States  v.  Alexander,  2  Wall.  404,  17  L.  Ed.  915. 

T  The  Pedro,  175  U.  S.  368,  20  Sup.  Ct.  138,  44  L.  Ed.  195. 


478  PRIZE.  (Ch.  28 

to  that  of  the  time  of  capture.®  The  judgment  of  a  national 
prize  court  was,  prior  to  the  Hague  Convention  of  19U7,  re- 
garded as  conclusive.' 


NATIONAL,    PRIZE    COURT. 

206.  The  validity  of  maritime  capture  is  determined  in  the 
first  instance  by  the  prize  court  of  the  belligerent  cap- 
tor.io 

It  has  been  repeatedly  claimed  that  the  prize  court  of  a  bel- 
ligerent administers  international  law.  Sir  William  Scott,  in 
1799,  said  of  the  basis  of  his  function  as  a  prize  court  judge: 
"I  trust  it  has  not  escaped  my  anxious  recollection  for  one 
moment  what  it  is  that  the  duty  of  my  station  calls  for  from 
me — namely,  to  consider  myself  as  stationed  here,  not  to  de- 
liver occasional  and  shifting  opinions  to  serve  present  purposes 
of  particular  national  interest,  but  to  administer  with  indiffer- 
ence that  justice  which  the  law  of  nations  holds  out  without 
distinction  to  independent  states,  some  happening  to  be  neutral 
and  some  to  be  belligerent.  The  seat  of  judicial  authority  is, 
indeed,  locally  here,  in  the  belligerent  country,  according  to 
the  known  law  and  practice  of  nations;  but  the  law  itself  has 
no  locality.  It  is  the  duty  of  the  person  who  sits  here  to  de- 
termine this  question  exactly  as  he  would  determine  the  same 
question  if  sitting  at  Stockholm :  to  assert  no  pretensions  on 
the  part  of  Great  Britain  which  he  would  not  allow  to  Sweden 
in  the  same  circumstances;  and  to  impose  no  duties  on 
Sweden,  as  a  neutral  country,  which  he  would  not  admit  to  be- 
long to  Great  Britain  and  in  the  same  character.  If,  there- 
fore, I  mistake  the  law  in  this  matter,  I  mistake  that  which  I 
consider,  and  which  I  mean  should  be  considered,  as  the  uni- 
versal law  upon  the  question — a  question  regarding  one  of  the 
most  important  rights  of  belligerent  nations  relatively  to  neu- 
trals." ^^  This  position  has  been  repeatedly  affirmed,  both  in 
British  and  other  courts. 

8  Lamar  v.  Browne,  92  U.  S.  187,  23  L>.  Ed.  650. 

9  The  Star,  3  Wheat.  78,  4  L.  Ed.  .",.38. 

10  For  general  subject,  see  7  Moore,  §§  1222-1248. 

11  The  Maria,  1  C.  Rob.  340. 


§  206)  NATIONAL   PRIZE    COURT.  470 

The  judges  of  national  prize  courts  are  appointed  and  the 
courts  are  constituted  according  to  municipal  law,  and  have  no 
direct  international  status.^ ^  They  are  responsible  to  their 
own  state  for  their  action. 

The  United  States  early  and  formally  recognized  the  need 
of  a  properly  constituted  court  for  appeal,  and  on  January  15, 
1780,  the  American  Congress — 

,  "Resolved,  that  a  court  be  established  for  the  trial  of  all 
appeals  from  the  courts  of  admiralty  in  these  United  States, 
in  cases  of  capture,  to  consist  of  three  judges,  appointed  and 
commissioned  by  Congress,  either  two  of  whom,  in  the  absence 
of  the  other,  to  hold  the  said  court  for  the  dispatch  of 
business. 

"That  the  said  court  appoint  their  own  register. 

"That  the  trials  therein  be  according  to  the  usage  of  nations 
and  not  by  jury."  ^^ 

In  the  United  States  the  District  Courts  act  as  prize  courts, 
with  appeal  to  the  Supreme  Court.  National  prize  courts  are 
differently  constituted  in  different  states.  Continental  states 
often  allow  certain  administrative  officers  to  act  vipon  prize. 

The  prize  court  sitting  at  Vladivostok  during  the  Russo- 
Japanese  War,  which  supported  the  action  of  Admiral  Jessen 
in  sinking  the  British  steamer.  Knight  Commander,  was 
largely  made  up  of  administrative  officials ;  three  of  the  six 
members  being  military  officers.  The  decision  of  this  court 
was  followed  by  protests,  and  the  case  was  appealed  to  a 
higher  court;  but  the  higher  court  was  likewise  a  national 
court,  and  from  the  national  court  there  was  no  appeal.  Of 
course,  the  decision  of  the  court  might  become  a  subject  for 
diplomatic  negotiation.  The  results  of  diplomatic  negotiations 
are,  however,  often  determined  by  political  considerations, 
rather  than  by  the  principles  of  law. 

The  procedure  in  prize  courts  is  usually  such  as  to  give  due 
weight  to  the  facts,  regardless  of  too  minute  technicalities. 

In  many  states  the  whole  or  a  portion  of  the  property  con- 

12  The  British  courts  are  based  on  the  Naval  Prize  Act,  1Sn4  (St. 
27  &  28  Vict.  c.  25),  and  the  Prize  Court  Act,  1894  (St.  57  &  5S  Vict.  c. 
30). 

1 3  3  Jour,  of  Cong.  p.  425. 


480  PRIZE.  (Ch.  28 

demned  as  prize  is  distributed  as  prize  money  among  the 
captors,  according  to  rank  and  degree  of  participation  in  the 
capture. 

The  United  States  aboHshed  this  practice  by  an  act  of  March 
3.  1899,  as  follows:  "All  provisions  of  law  authorizing  the 
distribution  among  captors  of  the  whole,  or  any  portion,  of 
the  proceeds  of  vessels,  or  any  property  hereafter  captured, 
condemned  as  prize,  or  providing  for  the  payment  of  bounty 
for  the  sinking  or  destruction  of  vessels  of  the  enemy  here- 
after occurring  in  time  of  war,  are  hereby  repealed."  ^* 


INTERNATIONAIi   PRIZE    COURT. 

207.  Tlie  Hague  Conference  of  1907  provided  for  tlie  estab- 
lislinient  of  an  international  prize  court,  to  ^vhich  ap- 
peal from  the  decision  of  a  national  prize  court  could 
be  taken. 

Even  when  national  prize  courts  have  been  constituted  after 
the  best  existing  models,  their  decisions  have  sometimes  been 
regarded  as  unjust.  Cases  are  not  lacking  where  the  decisions 
of  the  highest  prize  courts  of  a  state  have  not  been  sustained 
when  referred  to  an  international  commission  for  considera- 
tion.^^ Such  reference  to  an  international  commission  had  not 
been  considered  as  in  any  way  obligatory,  but  simply  as  a 
courtesy,  which  might  or  might  not  be  conceded.  Many  cases, 
both  in  earlier  and  in  recent  wars,  showed  that,  while  the 
national  prize  courts  might  endeavor  to  administer  justice 
impartially,  there  was  often  a  belief  that  national  bias  made 
this  impossible.  There  was  also  the  feeling  that,  if  national 
courts  were  administering  international  law  impartially  in 
cases  of  prize,  there  could  be  no  valid  objection  to  the  refer- 
ence of  such  cases  to  an  international  tribunal,  which  would 
observe  the  same  law  in  its  decisions,  and  at  the  same  time  be 
free  from  the  imputation  of  possible  bias.  Indeed,  it  was  be- 
lieved that  a  decision  rendered  by  an  international  prize  court 
would  meet  approval  more  readily  than  the  same  decision  ren- 

14  30  Stat.  1007  (U.  S.  Comp.  St.  1901,  p.  1072). 

IB  The  Circassian,  4  Moore,  Int.  Arbitrations,  pp.  3911-3923. 


§  207)  INTERNATIONAL    PRIZE    COURT.  481 

dered  by  a  national  prize  court.  The  establishment  of  an  in- 
ternational prize  court  was  considered  to  be  a  step  toward  the 
removal  of  one  of  the  causes  of  international  differences,  and 
in  furtherance  of  peace. 

Recognizing-  the  advantages  which  might  follow  the  estab- 
lishment of  an  international  prize  court,  and  hoping  to  remove 
so  far  as  possible  causes  of  international  friction,  the  Hague 
Conference  of  1907  agreed  upon  a  Convention  Relative  to  the 
Creation  of  an  International  Prize  Court.^® 

In  this  convention  the  functions,  competence,  constitution, 
and  procedure  of  the  international  prize  court  are  set  forth  at 
length  and  in  detail.  In  general,  provision  is  made  for  appeal 
from  the  national  prize  court  in  case  of  default  or  delay  of 
justice;  for  a  final  decision  to  which  the  contracting  powers 
will  submit  in  good  faith ;  for  the  appointment  of  judges  of 
known  proficiency  in  questions  of  international  maritime  law, 
fifteen  of  whom  will  constitute  the  court,  and  for  the  appoint- 
ment of  a  naval  officer,  who  may  sit  with  the  court  as  assessor; 
and  for  the  method  by  which  the  case  shall  be  brought  before 
the  court,  for  its  conduct,  and  for  the  rendering  of  the  deci- 
sion.^'' 

The  Convention  Relative  to  the  Creation  of  an  International 
Prize  Court  contained  a  clause  in  article  VII  to  the  effect  that, 
if  no  treaty  covered  the  question  of  law  at  issue,  the  court 
should  apply  the  rules  of  international  law,  and  "if  no  gen- 
erally recognized  rule  exists,  the  court  shall  give  judgment  in 
accordance  with  the  general  principles  of  justice  and  equity." 
Certain  states  were  unwilling  to  become  parties  to  this  conven- 
tion while  such  wide  diversity  of  opinion  existed  as  to  the 
rules  of  international  law  and  the  principles  of  justice  and 
equity  as  applied  to  maritime  capture  as  seemed  to  exist 
among  the  states  which  might  most  often  as  neutrals  or  bellig- 
erents come  before  the  court. 

Great  Britain,  accordingly,  in  1908  took  the  initiative  in 
calling  a  conference  of  the  naval  powers  to  formulate  "the 
rules  which,  in  the  absence  of  special  treaty  provisions  applica- 

16  Convention  Relative  to  the  Creation  of  an  International  Prize 
Court,  Appendix,  p    554. 

17  Id.,  art.  XVIII. 

WiLS.lNT.L. — 31 


482  PRIZE.  (Ch.  28 

ble  to  a  particular  case,  the  court  should  observe  in  dealing 
with  appeals  brought  before  it  for  decision."  In  response  to 
the  invitation  of  Great  Britain  the  representatives  of  ten  pow- 
ers assembled  in  what  is  known  as  the  International  Naval 
Conference  at  London  on  December  4,  1908,  and  in  the  Pre- 
liminary Provisions  of  the  Declaration  of  London  of  February 
26,  1909,  stated  that  "the  signatory  powers  are  agreed  that 
the  rules  contained  in  the  following  chapters  correspond  in 
substance  with  the  generally  recognized  principles  of  inter- 
national law."  These  rules  cover  the  general  field  of  warfare 
on  the  sea,  containing  chapters  on  blockade,  contraband,  un- 
neutral service,  destruction  of  neutral  prizes,  transfer  to  a  neu- 
tral flag,  enemy  character,  resistance  to  search,  convoy,  and 
compensation.^^ 

The  work  of  these  international  conferences  at  The  Hague 
and  elsewhere  has  been  with  the  aim  to  establish  uniform  law 
among  nations,  whose  relations  are  daily  becoming  closer,  and 
whose  highest  prosperity  depends  upon  the  reign  of  justice. 

18  Appendix,  p.  574. 


APPENDICES 


WiLS.lNT.L.  (483)* 


APPENDICES 


APPENDIX  I. 

Fag* 
Declaration  of  Paris,  April  16,  1856 44J7 


APPENDIX  II. 

Instructions  for  the  Government  of  Armies  of  the  United  States 
in  the  Field,  April  24,  1863 488 


APPENDIX  III. 

Geneva  Convention  for  the  Amelioration  of  the  Condition  of  the 
Wounded  in  Armies  in  the  Field,  July  6,  1906 508 


APPENDIX  IV. 

Hague  Conventions  of  1907. 

Final  Act  of  the  Second  International  Peace  Conference..  515 

Convention  for  the  Pacific  Settlement  of  International  Dis- 
putes        519 

Convention  Respecting  the  Daws  and  Customs  of  War  on 
Lnnd 535 

Convention  Respecting  the  Rights  and  Duties  of  Neutral  Pow- 
ers and  Persons  in  Case  of  War  on  Land 546 

Convention  for  the  Adaptation  to  Naval  War  of  the  Prin- 
ciples of  the  Geneva  Convention 549 

Convention  Relative  to  the  Creation  of  an  International 
Prize    Court 554 

Convention  Concerning  the  Rights  and  Duties  of  Neutral 
Powers  in  Naval  War 563 

Draft  Convention  Relative  to  the  Creation  of  a  Court  of 
Arbitral  Justice 568 


APPENDIX  V. 

Declaration  of  Dondon,  February  26,   1009 674 

WiLs.lNT.L.  (485)» 


APPENDIX  I 

DECLARATION  OF  PARIS 


The  Plenipotentiaries  who  signed  the  Treaty  of  Paris  of  the  thir- 
tieth of  March,  one  thousand  eight  hundred  and  fifty-six,  assembled 
in  conference. 

Con?idering: 

That  maritime  law  in  time  of  war  has  long  been  the  subject  of  de- 
plorable disputes; 

That  the  uncertainty  of  the  law  and  of  the  duties  in  such  a  matter 
give  rise  to  differences  of  opinion  between  neutrals  and  belligerents 
which  may  occasion  serious  difficulties,  and  even  conflicts;  that  it 
is  consequently  advantageous  to  establish  a  uniform  doctrine  on  so 
important  a  point; 

That  the  Plenipotentiaries  assembled  in  Congress  at  Paris  cannot 
better  respond  to  the  intentions  by  which  their  Governments  are 
animated,  than  by  seeking  to  introduce  into  international  relations 
fixed  principles,  in  this  respect. 

The  above-mentioned  Plenipotentiaries,  being  duly  authorized,  re- 
solved to  concert  among  themselves  as  to  the  means  of  attaining 
this  object;  and  having  come  to  an  agreement,  have  adopted  the 
following  solemn  declaration: 

1.  Privateering  is  and  remains  abolished; 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  exception  of 
contraband  of  war; 

3.  Neutral  goods,  with  the  exception  of  contraband  of  war,  are 
not  liable  to  capture  under  enemy's  flag; 

4.  Blockades,  in  order  to  be  binding,  must  be  effective — that  is  to 
say,  maintained  by  a  force  sufficient  really  to  prevent  access  to  the 
coast  of  the  enemy. 

The  Governments  of  the  undersigned  Plenipotentiaries  engage  to 
bring  the  present  Declaration  to  the  knowledge  of  the  States  which 
have  not  taken  part  in  the  Congress  of  Paris,  and  to  invite  them  to 
accede  to  it. 

Convinced  that  the  maxims  which  they  now  proclaim  cannot  but 
be  received  with  gratitude  by  the  whole  world,  the  undersigned  Plen- 
ipotentiaries doubt  not  that  the  efforts  of  their  Governments  to  ob- 
tain the  general  adoption  thereof  will  be  crowned  with  full  success. 

The  present  declaration  is  not  and  shall  not  be  binding,  except 
between  those  Powers  who  have  acceded,  or  shall  accede,  to  it. 

Done  at  Paris,  the  sixteenth  of  April,  one  thousand  eight  hundred 
and  fifty-six. 

WiLS.lNT.L.  (487) 


APPENDIX  II 

INSTRUCTIONS  FOR  THE  GOVERNMENT  OF  ARMIES 
OF  THE  UNITED  STATES  IN  THE  FIELD 


GENERAL  ORDERS,    )        War  Department, 

[■  Adjutant-General's  Office, 

No.  100.  )  Washington,  April  24,  1863. 

The  followiug  "lustructions  for  the  Government  of  Armies  of  the 
United  States  in  the  Field,"  prepared  by  Francis  Lieber,  LL.  D., 
and  revised  by  a  Board  of  Officers,  of  which  Major-General  E.  A. 
Hitchcock  is  president,  having  been  approved  by  the  President  of 
the  United  States,  he  commands  that  they  be  published  for  the  in- 
formation of  all  concerned. 

By  ordee  of  the  Secretary  of  War: 

E.   D.  TOWNSEND, 

Assistant    Adjutant-General. 


SECTION     I.— MARTIAL     LAW— MILITARY     JURISDICTION- 
MILITARY  NECESSITY— RETALIATION. 

1.  A  place,  district,  or  country  occupied  by  an  enemy  stands,  in 
consequence  of  the  occupation,  under  the  Martial  Law  of  the  invad- 
ing or  occupying  army,  whether  any  proclamation  declaring  Martial 
Law,  or  any  public  warning  to  the  inhabitants,  has  been  issued  or 
not.  Martial  Law  is  the  immediate  and  direct  effect  and  conse- 
quence of  occupation  or  conquest. 

The  presence  of  a  hostile  army  proclaims  its  Martial  Law. 

2.  Martial  Law  does  not  cease  during  the  hostile  occupation,  ex- 
cept by  special  proclamation,  ordered  by  the  commander-in-chief; 
or  by  special  mention  in  the  treaty  of  peace  concluding  the  war, 
when  the  occupation  of  a  place  or  territory  continues  beyond  the 
conclusion  of  peace  as  one  of  the  conditions  of  the  same. 

3.  Martial  Law  in  a  hostile  country  consists  in  the  suspension,  by 
the  occupying  military  authority,  of  the  criminal  and  civil  law,  and 
of  the  domestic  administration  and  government  in  the  occupied  place 
or  territory,  and  in  the  substitution  of  military  rule  and  force  for 
the  same,  as  well  as  in  the  dictation  of  general  laws,  as  far  as  mili- 
tary necessity  requires  this  suspension,  substitution,  or  dictation. 

The  commander  of  the  forces  may  proclaim  that  the  administra- 
tion of  all  civil  and  penal  law  shall  continue,  either  wholly  or  in 
WiLS.lNT.L.  (488) 


AMERICAN   INSTRUCTIONS  FOR   GOVERNMENT  OF   ARMIES.     489 

part,  as  in  times  of  peace,  unless  otherwise  ordered  by  the  military 
authority. 

4.  Martial  Law  is  simply  military  authority  exercised  in  accord- 
ance with  the  laws  and  usages  of  war.  Military  oppression  is  not 
Martial  Law;  it  is  the  abuse  of  the  power  which  that  law  confers. 
As  Martial  Law  is  executed  by  military  force,  it  is  incumbent  upon 
those  who  administer  it  to  be  strictly  guided  by  the  principles  of 
justice,  honor,  and  humanity — virtues  adorning  a  soldier  even  more 
than  other  men,  for  the  very  reason  that  he  possesses  the  power  of 
his  arms  against  the  unarmed. 

5.  Martial  Law  should  be  less  stringent  in  places  and  countries 
fully  occupied  and  fairly  conquered.  Much  greater  severity  may  be 
exercised  in  places  or  regions  where  actual  hostilities  exist,  or  are 
expected  and  must  be  prepared  for.  Its  most  complete  sway  is  al- 
lowed— even  in  the  commander's  own  country — when  face  to  face 
with  the  enemy,  because  of  the  absolute  necessities  of  the  case,  and 
of  the  paramount  duty  to  defend  the  country  against  invasion. 

To  save  the  eoimtry  is  paramount  to  all  other  considerations. 

6.  All  civil  and  penal  law  shall  continue  to  take  its  usual  coui*se 
in  the  enemy's  places  and  territories  under  Martial  Law,  unless  in- 
terrupted or  stopped  by  order  of  the  occupying  military  power;  but 
all  the  functions  of  the  hostile  government — legislative,  executive,  or 
administrative — whether  of  a  general,  provincial,  or  local  charac- 
ter, cease  under  Martial  Law,  or  continue  only  with  the  sanction, 
or  if  deemed  necessary,  the  participation  of  the  occupier  or  invader. 

7.  Martial  Law  extends  to  property,  and  to  persons,  whether  they 
are  subjects  of  the  enemy  or  aliens  to  that  government. 

8.  Consuls,  among  American  and  European  nations,  are  not  dip- 
lomatic agents.  Nevertheless,  their  offices  and  persons  will  be  sub- 
jected to  Martial  Law  in  cases  of  urgent  necessity  only;  their  prop- 
erty and  business  are  not  exempted.  Any  delinquency  they  commit 
against  the  established  military  rule  may  be  punished  as  in  the  case 
of  any  other  inhabitant,  and  such  punishment  furnishes  no  reason- 
able ground  for  international  complaint. 

9.  The  functions  of  Ambassadors,  Ministers,  or  other  diplomatic 
agents,  accredited  by  neutral  powers  to  the  hostile  government, 
cease,  so  far  as  regards  the  displaced  government;  but  the  conquer- 
ing or  occupying  power  usually  recognizes  them  as  temporarily  ac- 
credited to  itself. 

10.  Martial  Law  affects  chiefly  the  police  and  collection  of  public 
revenue  and  taxes,  whether  imposed  by  the  expelled  government  or 
by  the  invader,  and  refers  mainly  to  the  support  and  efficiency  of 
the  army,  its  safety,  and  the  safety  of  its  operations. 

11.  The  law  of  war  does  not  only  disclaim  all  cruelty  and  bad 
faith  concerning  engagements  concluded  with  the  enemy  during  the 
war,  but  also  the  breaking  of  stipulations  solemnly  contracted  by 
the  belligerents  in  time  of  peace,  and  avowedly  intended  to  remain 
in  force  in  case  of  war  between  the  conti-acting  powers. 


490  APPENDIX   II. 

It  disclaims  all  extortions  and  other  transactions  for  individual 
gain;    all  acts  of  private  revenge,  or  connivance  at  such  acts. 

Offences  to  tlie  contrary  shall  be  severely  punished,  and  especially 
so  if  committed  by  officers. 

12.  Whenever  feasible,  Martial  Law  is  carried  out  in  case  of  in- 
dividual offendei's  by  Military  Courts;  but  sentences  of  death  shall 
be  executed  only  with  the  approval  of  the  chief  executive,  provided 
the  urgency  of  the  case  does  not  require  a  speedier  execution,  aud 
then  only  with  the  approval  of  the  chief  commander 

13.  Military  jurisdiction  is  of  two  kinds:  First,  that  which  is  con- 
ferred and  defined  by  statute;  second,  that  which  is  derived  from 
the  common  law  of  war.  Military  offences  under  the  statute  law 
must  be  tried  in  the  manner  therein  directed;  but  military  offences 
which  do  not  come  within  the  statute  must  be  tried  and  punished 
under  the  common  law  of  war.  The  character  of  the  courts  which 
exercise  these  jurisdictions  depends  upon  the  local  laws  of  each  par- 
ticular country. 

In  the  armies  of  the  United  States  the  first  is  exercised  by  courts- 
martial;  while  cases  which  do  not  come  within  the  "Rules  and  Ar- 
ticles of  War,"  or  the  jurisdiction  conferred  by  statute  on  courts- 
martial,  are  tried  by  military  commissions. 

14.  Military  necessity,  as  understood  by  modern  civilized  nations, 
consists  in  the  necessity  of  those  measures  which  are  indispensable 
for  securing  the  ends  of  the  war,  and  which  are  lawful  according 
to  the  modern  law  and  usages  of  war. 

15.  Military  necessity  admits  of  all  direct  destruction  of  life  or 
limb  of  armed  enemies,  and  of  other  persons  whose  destruction  is 
incidentally  unavoidable  in  the  armed  contests  of  the  war;  it  al- 
lows of  the  capturing  of  every  armed  enemy,  and  every  enemy  of 
importance  to  the  hostile  government,  or  of  peculiar  danger  to  the 
captor;  it  allows  of  all  destruction  of  property,  and  obstruction  of 
the  ways  and  channels  of  traffic,  travel,  or  communication,  and  of 
all  withholding  of  sustenance  or  means  of  life  from  the  enemy;  of 
the  appropriation  of  whatever  an  enemy's  coimtry  affords  necessary 
for  the  subsistence  and  safety  of  the  army,  and  of  such  deception 
as  does  not  involve  the  breaking  of  good  faith  either  positively 
pledged,  regarding  agreements  entered  into  during  the  war,  or  sup- 
posed by  the  modern  law  of  war  to  exist.  Men  who  take  up  arms 
against  one  another  in  public  war  do  not  cease  on  this  account  to 
be  moral  beings,  responsible  to  one  another,  and  to  God. 

16.  Military  necessity  does  not  admit  of  cruelty,  that  is,  the  In- 
fliction of  suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of 
maiming  or  wounding  except  in  fight,  nor  of  torture  to  extort  con- 
fessions. It  does  not  admit  of  the  use  of  poison  in  any  way,  nor 
of  the  wanton  devastation  of  a  district  It  admits  of  deception,  but 
disclaims  acts  of  perfidy;  and,  in  general,  military  necessity  does 
not  include  any  act  of  hostility  which  makes  th.e  return  to  peace 
unnecessarily  difficult. 


AMERICAN   INSTRUCTIONS   FOR   GOVERNMENT  OP  ARMIES.     491 

17.  War  is  not  carried  on  by  arms  alone.  It  is  lawful  to  starve 
the  liostile  belligei'ent,  armed  or  unarmed,  so  that  it  leads  to  the 
speedier  subjection  of  the  enemy. 

IS.  When  the  commander  of  a  besieged  place  expels  the  non-com- 
batants, in  order  to  lessen  the  number  of  those  who  consume  his 
stock  of  provisions,  it  is  lawful,  though  an  extreme  measure,  to 
drive  them  back,  so  as  to  hasten  on  the  surrender. 

19.  Commanders,  whenever  admissible,  inform  the  enemy  of  their 
intention  to  bombard  a  place,  so  that  the  non-combatants,  and  espe- 
cially the  women  and  children,  may  be  removed  before  the  bom- 
bardment commences.  But  it  is  no  infraction  of  the  common  law 
of  war  to  omit  thus  to  inform  the  enemy.  Surprise  may  be  a  ne- 
cessity. 

20.  Public  war  is  a  state  of  armed  hostility  between  sovereign 
nations  or  governments.  It  is  a  law  and  requisite  of  civilized  ex- 
istence that  men  live  in  political,  continuous  societies,  forming  or- 
ganized units,  called  states  or  nations,  whose  constituents  bear,  en- 
joy, and  suffer,  advance  and  retrograde  together,  in  peace  and  in 
war. 

21.  The  citizen  or  native  of  a  hostile  country  is  thus  an  enemy,  as 
one  of  the  constituents  of  the  hostile  state  or  nation,  and  as  such 
is  subjected  to  the  hardships  of  the  war. 

22.  Nevertheless,  as  civilization  has  advanced  during  the  last  cen- 
turies, so  has  likewise  steadily  advanced,  especially  in  war  on  land, 
the  distinction  between  the  private  individual  belonging  to  a  hostile 
country  and  the  hostile  coimtry  itself,  with  its  men  in  arms.  The 
principle  has  been  more  and  more  acknowledged  that  the  unarmed 
citizen  is  to  be  spared  in  person,  property,  and  honor  as  much  as 
the  exigencies  of  war  will  admit. 

23.  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried 
off  to  distant  parts,  and  the  inoffensive  individual  is  as  little  dis- 
turbed in  his  private  relations  as  the  commander  of  the  hostile  troops 
can  afford  to  grant  in  the  overruling  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times  was,  and  continues 
to  be  with  barbarous  armies,  that  the  private  individual  of  the  hos- 
tile country  is  destined  to  suffer  every  privation  of  liberty  and  pro- 
tection, and  every  disruption  of  family  ties.  Protection  was,  and 
still  is  with  uncivilized  people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans,  and  their  descend- 
ants in  other  portions  of  the  globe,  protection  of  the  inoffensive 
citizen  of  the  hostile  country  is  the  rule;  privation  and  disturbance 
of  private  relations  are  the  exceptions. 

26.  Commanding  generals  may  cause  the  magistrates  and  civil 
ofRcers  of  the  hostile  country  to  take  the  oath  of  temporary  alle- 
giance or  an  oath  of  fidelity  to  their  own  victorious  government  or 
rulers,  and  they  may  expel  every  one  who  declines  to  do  so.  But 
whether  they  do  so  or  not,  the  people  and  their  civil  officers  owe 


492  APPENDIX   II. 

strict  obedience  to  them  as  long  as  they  hold  sway  over  the  district 
or  country,  at  the  peril  of  their  lives. 

27.  The  law  of  war  can  uo  more  wholly  dispense  with  retaliation 
than  can  the  law  of  nations,  of  which  it  is  a  branch.  Yet  civilized 
nations  acknowledge  retaliation  as  the  sternest  feature  of  war.  A 
reckless  enemy  often  leaves  to  his  opponent  no  other  means  of  se- 
curing himself  against  the  repetition  of  barbarous  outrage. 

28.  Retaliation  will,  therefore,  never  be  resorted  to  as  a  measure 
of  mere  revenge,  but  only  as  a  means  of  protective  retribution,  and. 
moreover,  cautiously  and  unavoidably;  that  is  to  say,  retaliation 
shall  only  be  resorted  to  after  careful  inquiry  into  the  real  occur- 
rence, and  the  character  of  the  misdeeds  that  may  demand  retribu- 
tion. 

Unjust  or  inconsiderate  retaliation  removes  the  belligerents  far- 
ther and  farther  from  the  mitigating  rules  of  a  regular  war,  and 
by  rapid  steps  leads  them  nearer  to  the  internecine  wars  of  sav- 
ages. 

29.  Modern  times  are  distinguished  from  earlier  ages  by  the  ex- 
istence, at  one  and  the  same  time,  of  many  nations  and  great  gov- 
ernments related  to  one  another  in  close  intercourse. 

Peace  is  their  normal  condition;  war  is  the  exception.  The  ulti- 
mate object  of  all  modern  war  is  a  renewed  state  of  peace. 

The  more  vigorously  wars  are  pursued,  the  better  it  is  for  human- 
ity.    Sharp  wars  are  brief. 

30.  Ever  since  the  formation  and  co-existence  of  modern  nations, 
and  ever  since  wars  have  become  great  national  wars,  war  has  come 
to  be  acknowledged  not  to  be  its  own  end,  but  the  means  to  obtain 
great  ends  of  state,  or  to  consist  in  defense  against  wrong;  and  no 
conventional  restriction  of  the  modes  adopted  to  injure  the  enemy 
is  any  longer  admitted;  but  the  law  of  war  imposes  many  limita- 
tions and  restrictions  on  principles  of  justice,  faith,  and  honor. 


SECTION  II.— PUBLIC  AND  PRIVATE  PROPERTY  OF  THE 
ENEMY— PROTECTION  OF  PERSONS,  AND  ESPECIALLY 
WOMEN ;  OF  RELIGION,  THE  ARTS  AND  SCIENCES— PUN- 
ISHMENT OF  CRIMES  AGAINST  THE  INHABITANTS  OF 
HOSTILE  COUNTRIES. 

31.  A  victorious  army  appropriates  all  public  money,  seizes  all  pub- 
lic movable  property  until  further  direction  by  its  government,  and 
sequesters  for  its  own  benefit  or  that  of  its  government  all  the  reve- 
nues of  real  property  belonging  to  the  hostile  government  or  nation. 
The  title  to  such  real  property  remains  in  abeyance  during  military 
occupation,  and  until  the  conquest  is  made  complete. 

32.  A  victorious  army,  by  the  martial  powers  inherent  in  the  same, 
may  suspend,  change,  or  abolish,  as  far  as  the  martial  power  extends, 
the  relations  which  arise  from  the  services  due,  according  to  the  ex- 


AMERICAN  INSTRUCTIONS   FOR  GOVERNMENT  OF  ARMIES.     493 

isHng  laws  of  the  invaded  country,  from  one  citizen,  subject,  or  native 
of  the  same  to  another. 

The  commander  of  the  army  must  leave  it  to  the  ultimate  treaty 
of  peace  to  settle  the  permanency  of  this  change. 

33.  It  is  no  longer  considered  lawful — on  the  contrary,  it  is  held  to 
be  a  serious  breach  of  the  law  of  war — to  force  the  subjects  of  the 
enemy  into  the  service  of  the  victorious  government,  except  the  latter 
should  proclaim,  after  a  fair  and  complete  conquest  of  the  hostile 
country  or  district,  that  it  is  resolved  to  keep  the  countiy,  district, 
or  place  permanently  as  its  own,  and  make  it  a  portion  of  its  own 
country. 

34.  As  a  general  rule,  the  property  belonging  to  churches,  to  hos- 
pitals, or  other  establishments  of  an  exclusively  charitable  character, 
to  establishments  of  education,  or  foundations  for  the  promotion  of 
knowledge,  whether  public  schools,  universities,  academies  of  learning 
or  observatories,  museums  of  the  fine  arts,  or  of  a  scientific  character 
— such  property  is  not  to  be  considered  public  property  in  the  sense  of 
paragraph  31;  but  it  may  be  taxed  or  used  when  the  public  service 
may  require  it. 

35.  Classical  works  of  art,  libraries,  scientific  collections,  or  pre- 
cious instruments,  such  as  astronomical  telescopes,  as  ■well  as  hos- 
pitals, must  be  secured  against  all  avoidable  injury,  even  when  they 
are  contained  in  fortified  places  whilst  besieged  or  bombarded. 

36.  If  such  works  of  art,  libraries,  collections,  or  instruments  be- 
longing to  a  hostile  nation  or  government,  can  be  removed  without 
injury,  the  ruler  of  the  conquering  state  or  nation  may  order  them 
to  be  seized  and  removed  for  the  benefit  of  the  said  nation.  The  ul- 
timate ownership  is  to  be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  shall  they  be  sold  or  given  away,  if  captured  by  the 
armies  of  the  United  States,  nor  shall  they  ever  be  privately  appro- 
priated, or  wantonly  destroyed  or  injured. 

37.  The  United  States  acknowledge  and  protect,  in  hostile  coun- 
tries occupied  by  them,  religion  and  morality ;  strictly  private  prop- 
erty ;  the  persons  of  the  inhabitants,  especially  those  of  women ; 
and  the  sacredness  of  domestic  relations.  Offences  to  the  contrary 
shall  be  rigorously  punished. 

This  rule  does  not  interfere  with  the  right  of  the  victorious  invader 
to  tax  the  people  or  their  property,  to  levy  forced  loans,  to  billet 
soldiers,  or  to  appropriate  property,  especially  houses,  land,  boats 
or  ships,  and  churches,  for  temporary  and  military  uses. 

38.  Private  property,  unless  forfeited  by  crimes  or  by  offences 
of  the  owner,  can  be  seized  only  by  way  of  military  necessity,  for 
the  support  or  other  benefit  of  the  army  of  the  United  States. 

If  the  owner  has  not  fled,  the  commanding  officer  will  cause  re- 
ceipts to  be  given,  which  may  serve  the  spoliated  owner  to  obtain 
indemnity. 

.39.  The  salaries  of  civil  officers  of  the  hostile  government  who 
remain  in   the  invaded  territory,   and  continue  the  work   of  their 


494  APPENDIX   II. 

office,  and  can  continue  it  according  to  the  circumstances  arising  out 
of  the  war — sucli  as  judges,  administrative  or  i>olice  officers,  officers 
of  city  or  communal  goverumeuts — are  paid  from  the  public  revenue 
of  the  invaded  territory,  until  the  military  government  has  reasou 
Tvholly  or  partially  to  discontinue  it.  Salaries  or  incomes  connected 
with  purely  honorary  titles  are  always  stopped. 

40.  There  exists  no  law  or  body  of  authoritative  rules  of  action 
between  hostile  armies,  except  that  branch  of  the  law  of  nature  and 
nations  which  is  called  the  law  and  usages  of  war  on  land. 

41.  All  municipal  law  of  the  ground  on  which  the  armies  stand, 
or  of  the  countries  to  which  they  belong,  is  silent  and  of  no  effect 
between  armies  in  the  field. 

42.  Slavery,  complicating  and  confounding  the  ideas  of  property, 
(that  is  of  a  thing,)  and  of  personality,  (that  is  of  humanity,)  exists 
according  to  municipal  law  or  local  law  only.  The  law  of  nature 
and  nations  has  never  acknowledged  it.  The  digest  of  the  Roman 
law  enacts  the  early  dictum  of  the  pagan  jurist,  that  "so  far  as  the 
law  of  nature  is  concerned,  all  men  are  equal."  Fugitives  escaping 
from  a  country  in  which  they  w-ere  slaves,  villains,  or  serfs,  into 
another  country,  liave,  for  centuries  past,  been  held  free  and  ac- 
knowledged free  by  judicial  decisions  of  European  countries,  even 
though  the  municipal  law  of  the  country  in  which  the  slave  had  taken 
refuge  acknowledged  slavery  within  its  own  dominions. 

43.  Therefore,  in  a  war  between  the  United  States  and  a  bellig- 
erent which  admits  of  slavery,  if  a  person  held  in  bondage  by  that 
belligerent  be  captured  by  or  come  as  a  fugitive  under  the  protection 
of  the  military  forces  of  the  United  States,  such  person  is  immedi- 
ately entitled  to  the  rights  and  privileges  of  a  free  man.  To  return 
such  person  into  slavery  would  amount  to  enslaving  a  free  person, 
and  neither  the  United  States  nor  any  officer  under  their  authority 
can  enslave  any  human  being.  Moreover,  a  person  so  made  free  by 
the  law  of  war  is  under  the  shield  of  the  law  of  nations,  and  the 
former  owner  or  state  can  have,  by  the  law  of  post-liminy,  no  bellig- 
erent lien  or  claim  of  service. 

44.  All  wanton  violence  committed  against  persons  in  the  invaded 
country,  all  destruction  of  property  not  commanded  by  the  authorized 
officer,  all  robbery,  all  pillage  or  sacking,  even  after  taking  a  place 
by  main  force,  all  rape,  wounding,  maiming,  or  killing  of  such  in- 
habitants, are  prohibited  under  the  penalty  of  death,  or  such  other 
severe  punishment  as  may  seem  adequate  for  the  gravity  of  the  of- 
fence. 

A  soldier,  officer  or  private,  in  the  act  of  committing  such  violence, 
and  disobeying  a  superior  ordering  him  to  abstain  from  it,  may  be 
lawfully  killed  on  the  spot  by  such  superior. 

45.  All  captures  and  booty  belong,  according  to  the  modern  law  of 
war.  primarily  to  the  government  of  the  captor. 

Prize  money,  whether  on  sea  or  laud,  can  now  only  be  claimed  un- 
der local  law. 


AMERICAN  INSTRUCTIONS   FOR  GOVERNMENT  OF  ARMIES.     495 

46.  Neither  officers  nor  soldiers  are  allowed  to  make  use  of  their 
position  or  power  in  the  hostile  country  for  private  gain,  not  even 
for  commercial  transactions  otherwise  legitimate.  Offences  to  the 
contrary  committed  by  commissioned  officers  will  be  punished  with 
cashiering  or  such  other  punishment  as  the  nature  of  the  offence  may 
require;  if  by  soldiers,  they  shall  be  punished  according  to  the  nature 
of  the  offence. 

47.  Crimes  punishable  by  all  penal  codes,  such  as  arson,  murder, 
maiming,  assaults,  highway  robbery,  theft,  burglary,  fraud,  forgery, 
and  rape,  if  committed  by  an  American  soldier  in  a  hostile  country 
against  its  inhabitants,  are  not  only  punishable  as  at  home,  but  in 
all  cases  in  which  death  is  not  inflicted,  the  severer  punishment  shall 
be  preferred. 

SECTION    III.— DESERTERS— PRISONERS    OF    WAR— HOSTA- 
GES—BOOTY  ON  THE  BATTLE-FIELD. 

48.  Deserters  from  the  American  army,  having  entered  the  service 
of  the  enemy,  suffer  death  if  they  fall  again  into  the  hands  of  the 
United  States,  whether  by  capture,  or  being  delivered  up  to  the 
American  army  ;  and  if  a  deserter  from  the  enemy,  having  taken  serv- 
ice in  the  army  of  the  United  States,  is  captured  by  the  enemy,  and 
punished  by  them  with  death  or  otherwise,  it  is  not  a  breach  against 
the  law  and  usages  of  war,  requiring  redress  or  retaliation. 

49.  A  prisoner  of  war  is  a  public  enemy  armed  or  attached  to  the 
hostile  army  for  active  aid,  who  has  fallen  into  the  hands  of  the 
captor,  either  fighting  or  wounded,  on  the  field  or  in  the  hospital,  by 
individual  surrender  or  by  capitulation. 

All  soldiers,  of  whatever  species  of  arms;  all  men  who  belong  to 
the  rising  en  masse  of  the  hostile  country ;  all  those  who  are  at- 
tached to  the  army  for  its  efficiency  and  promote  directly  the  object 
of  the  war,  except  such  as  are  hereinafter  provided  for;  all  dis- 
abled men  or  officers  on  the  field  or  elsewhere,  if  captured;  all  ene- 
mies who  have  thrown  away  their  arms  and  ask  for  quarter,  are 
prisoners  of  war,  and  as  such  exposed  to  the  inconveniences  as  well 
as  entitled  to  the  privileges  of  a  prisoner  of  war. 

50.  Moreover,  citizens  who  accompany  an  army  for  whatever  pur- 
pose, such  as  sutlers,  editors,  or  reporters  of  journals,  or  contract- 
ors, if  captured,  may  be  made  prisoners  of  war,  and  be  detained  as 
such. 

The  monarch  and  members  of  the  hostile  reigning  family,  male  or 
female,  the  chief,  and  chief  officers  of  the  hostile  government,  its 
diplomatic  agents,  and  all  persons  who  are  of  particular  and  singu- 
lar use  and  benefit  to  the  hostile  army  or  its  government,  are,  if 
captured  on  belligerent  ground,  and  if  unprovided  with  a  safe  con- 
duct granted  by  the  captor's  government,  prisoners  of  war. 

51.  If  the  people  of  that  portion  of  an  invaded  country  which  is 
not  yet  occupied  by  the  enemy,  or  of  the  whole  country,  at  the  ap- 


496  APPENDIX   II. 

proach  of  a  hostile  army,  rise  under  a  duly  autliorized  levy,  en  masse 
to  resist  the  invader,  they  are  novs^  treated  as  public  enemies,  and 
if  captured,  are  prisoners  of  war. 

."•2.  No  belligerent  has  the  right  to  declare  that  he  will  treat  every 
captured  man  in  arms  of  a  levy  en  masse  as  a  brigand  or  bandit. 

If.  however,  the  people  of  a  country,  or  any  portion  of  the  same, 
already  occupied  by  an  army,  rise  against  it,  they  are  violators  of 
the  laws  of  war,  and  are  not  entitled  to  their  protection. 

53.  The  enemy's  chaplains,  ofiicers  of  the  medical  staff,  apothe- 
caries, hospital  nurses  and  servants,  if  they  fall  into  the  hands  of 
the  American  army,  are  not  prisoners  of  Avar,  unless  the  commander 
has  reasons  to  retain  them.  In  this  latter  case,  or  if,  at  their  own 
desire,  they  are  allowed  to  remain  with  their  captured  companions, 
they  are  treated  as  prisoners  of  war,  and  may  be  exchanged  If  the 
commander  sees  fit. 

5i.  A  hostage  is  a  person  accepted  as  a  pledge  for  the  fulfillment 
of  an  agreement  concluded  between  belligerents  during  the  war,  or 
in  consequence  of  a  war.     Hostages  are  rare  in  the  present  age. 

55.  If  a  hostage  is  accepted,  he  is  treated  like  a  prisoner  of  war, 
according  to  rank  and  condition,  as  circumstances  may  admit. 

56.  A  prisoner  of  war  is  subject  to  no  punishment  for  being  a 
public  enemy,  nor  is  any  revenge  wreaked  upon  him  by  the  inten- 
tional infliction  of  any  suffering,  or  disgrace,  by  cruel  imprisonment, 
want  of  food,  by  mutilation,  death,  or  any  other  barbarity. 

57.  So  soon  as  a  man  is  armed  by  a  sovereign  government,  and 
takes  the  soldier's  oath  of  'fidelity,  he  is  a  belligerent;  his  killing, 
wounding,  or  other  warlike  acts,  are  no  individual  crimes  or  offen- 
ces. No  belligerent  has  a  right  to  declare  that  enemies  of  a  certain 
class,  color,  or  condition,  when  properly  organized  as  soldiers,  will 
not  be  treated  by  him  as  public  enemies. 

58.  The  law  of  nations  knows  of  no  distinction  of  color,  and  if 
an  enemy  of  the  United  States  should  enslave  and  sell  any  captured 
persons  of  their  army,  it  w^ould  be  a  case  for  the  severest  retalia- 
tion, if  not  redressed  upon  complaint. 

The  United  'States  cannot  retaliate  by  enslavement;  therefore 
death  must  be  the  retaliation  for  this  crime  against  the  law  of  na- 
tions. 

59.  A  prisoner  of  war  remains  answerable  for  his  crimes  com- 
mitted against  the  captor's  army  or  people,  committed  before  he  was 
captured,  and  for  which  he  has  not  been  punished  by  his  own  au- 
thorities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retaliatory 
measures. 

60.  It  is  against  the  usage  of  modern  war  to  resolve,  in  hatred 
and  revenge,  to  give  no  quarter.  No  body  of  troops  has  the  right  to 
declare  that  it  will  not  give,  and  therefore  will  not  expect,  quarter; 
but  a  commander  is  permitted  to  direct  his  troops  to  give  no  quarter, 
in  great  straits,  when  his  own  salvation  makes  it  impossible  to  cum- 
ber himself  with  prisoners. 


AMERICAN   INSTRUCTIONS   FOR   GOVERNMENT  OF   ARMIES.     497 

61.  Troops  that  give  no  quarter  have  no  right  to  kill  enemies  al- 
ready disabled  on  the  ground,  or  prisoners  captured  by  other  troops. 

62.  All  troops  of  the  enemy  known  or  discovered  to  give  no  quar- 
ter In  general,  or  to  any  portion  of  the  army,  receive  none. 

63.  Troops  who  fight  in  the  uniform  of  their  enemies,  without  any 
plain,  striking,  and  uniform  mark  of  distinction  of  their  own,  can 
expect  no  quarter. 

04.  If  American  troops  capture  a  train  containing  uniforms  of  the 
enemy,  and  the  commander  considers  it  advisable  to  distribute  them 
for  use  among  his  men,  some  striking  mark  or  sign  must  be  adopted 
to  distinguish  the  American  soldier  from  the  enemy. 

do.  The  use  of  the  enemy's  national  standard,  flag,  or  other  em- 
blem of  nationality,  for  the  purpose  of  deceiving  the  enemy  in  bat- 
tle, is  an  act  of  perfidy  by  which  they  lose  all  claim  to  the  protec- 
tion of  the  laws  of  war. 

66.  Quarter  having  been  given  to  an  enemy  by  American  troops, 
under  a  misapprehension  of  his  true  character,  he  may,  nevertheless, 
be  ordered  to  suffer  death  if,  within  three  days  after  the  battle  it 
be  discovered  that  he  belongs  to  a  corps  which  gives  no  quarter. 

67.  The  law  of  nations  allows  every  sovereign  government  to  make 
war  upon  another  sovereign  state,  and,  therefore,  admits  of  no  rules 
or  laws  different  from  those  of  regular  warfare,  regarding  the  treat- 
ment of  prisoners  of  war,  although  they  may  belong  to  the  army  of 
a  government  which  the  captor  may  consider  as  a  wanton  and  un- 
just assailant. 

68.  Modern  wars  are  not  internecine  wars,  in  which  the  killing  of 
the  enemy  is  the  object.  The  destruction  of  the  enemy  in  modern 
war,  and,  indeed,  modern  war  itself,  are  means  to  obtain  that  ob- 
ject of  the  belligerent  which  lies  beyond  the  war. 

Unnecessary  or  revengeful  destruction  of  life  is  not  lawful. 

69.  Outposts,  sentinels,  or  pickets  are  not  to  be  fired  upon,  except 
to  drive  them  in,  or  when  a  positive  order,  special  or  general,  has 
been  issued  to  that  effect. 

70.  The  use  of  poison  in  any  manner,  be  it  to  poison  wells,  or 
food,  or  arms,  is  Avholly  excluded  from  modern  warfare.  He  that 
uses  it  puts  himself  out  of  the  pale  of  the  law  and  usages  of  war. 

71.  Whoever  intentionally  inflicts  additional  wounds  on  an  enemy 
already  wholly  disabled,  or  kills  such  an  enemy,  or  who  orders  or 
encourages  soldiers  to  do  so,  shall  suffer  death,  if  duly  convicted, 
whether  he  belongs  to  the  army  of  the  United  States,  or  is  an  enemy 
captured  after  having  committed  his  misdeed. 

72.  Money  and  other  valuables  on  the  person  of  a  prisoner,  such 
as  watches  or  jewelry,  as  well  as  extra  clothing,  are  regarded  by  the 
American  army  as  the  private  property  of  the  prisoner,  and  the  ap- 
propriation of  such  valuables  or  money  is  considered  dishonorable, 
and  is  prohibited. 

Nevertheless,  if  large  sums  are  found  upon  the  persons  of  pris- 
oners, or  in  their  possession,  they  shall  be  taken  from  them,  and  the 

WiLS.lNT.L.— 32 


498  APPENDIX   II. 

surplus,  after  providing  for  their  own  support,  appropriated  for  the 
use  of  the  army,  under  the  direction  of  the  commander,  unless  oth- 
erwise ordered  by  the  government.  Nor  can  prisoners  claim,  as 
private  property,  large  sums  found  and  captured  in  their  train,  al- 
though they  had  been  placed  in  the  private  luggage  of  the  prisuuers. 

73.  All  officers,  when  captured,  must  surrender  their  side-arms 
to  the  captor.  They  may  be  restored  to  the  prisoner  in  marked 
cases,  by  the  commander,  to  signalize  admiration  of  his  distinguish- 
ed bravery,  or  approbation  of  his  humane  treatment  of  prisoners  be- 
fore his  capture.  The  captui-ed  officer  to  whom  they  may  be  re- 
stored cannot  wear  them  during  captivity. 

74.  A  prisoner  of  war  being  a  pul)lic  enemy,  is  the  prisoner  of 
the  government,  and  not  of  the  captor.  No  ransom  can  be  paid  by  a 
prisoner  of  war  to  his  individual  captor,  or  to  any  officer  in  com- 
mand. The  government  alone  releases  captives,  according  to  rules 
prescribed  by  itself. 

75.  Prisoners  of  war  are  subject  to  confinement  or  imprisonment 
such  as  may  be  deemed  necessary  on  account  of  safety,  but  they  are 
to  be  subjected  to  no  other  intentional  suffering  or  indignity.  The 
confinement  and  mode  of  treating  a  prisoner  may  be  varied  during 
his  captivity  according  to  the  demands  of  safety. 

76.  Prisoners  of  war  shall  be  fed  upon  plain  and  wholesome  food 
whenever  practicable,  and  treated  with  humanity. 

They  may  be  required  to  work  for  the  benefit  of  the  captor's  gov- 
ernment, according  to  their  rank  and  condition. 

77.  A  prisoner  of  war  who  escapes  may  be  shot,  or  otherwise 
killed  in  his  fiight;  but  neither  death  nor  any  other  punishment 
shall  be  inflicted  upon  him  simply  for  his  attempt  to  escape,  which 
the  law  of  war  does  not  consider  a  crime.  Stricter  means  of  se- 
curity shall  be  used  after  an  unsuccessful  attempt  at  escape. 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of  which  is 
a  united  or  general  escape,  the  conspirators  may  be  rigorously  pun- 
ished, even  with  death;  and  capital  punishment  may  also  be  inflict- 
ed upon  prisoners  of  war  discovered  to  have  plotted  rebellion  against 
the  authorities  of  the  captors,  whether  in  union  with  fellow-pris- 
oners or  other  persons. 

78.  If  prisoners  of  war,  having  given  no  pledge  nor  made  any 
promise  on  their  honor,  forcibly  or  otherwise  escape,  and  are  cap- 
tured again  in  battle,  after  having  rejoined  their  own  army,  they 
shall  not  be  punished  for  their  escape,  but  shall  be  ti-eated  as  simple 
prisoners  of  war,  although  they  will  be  subjected  to  stricter  con- 
finement. 

79.  Eh'ery  captured  wounded  enemy  shall  be  medically  treated, 
according  to  the  ability  of  the  medical  staff. 

80.  Honorable  men,  when  captured,  will  abstain  from  giving  to 
the  enemy  information  concerning  their  own  army,  and  the  modern 
law  of  war  permits  no  longer  the  use  of  any  violence  against  pris- 
oners, in  order  to  extort  the  desired  information,  or  to  punish  them 
for  having  given  false  infox'mation. 


AMERICAN   INSTRUCTIONS   FOR   GOVERNMENT  OF   ARMIES.      499 


SECTION  IV.— PARTISANS— ARMED   ENEMIES   NOT   BELONG- 
ING TO  THE  HOSTILE  ARMY— SCOUTS— ARMED 
PROWLERS— WAR-REBELS. 

81.  Partisans  are  soldiers  armed  and  wearing  the  uniform  of  their 
army,  but  belonging  to  a  corps  which  acts  detached  from  the  main 
body  for  the  purpose  of  maldug  inroads  into  the  territory  occupied 
by  the  enemy.  If  captured,  they  are  entitled  to  all  the  privileges 
of  the  prisoner  of  war. 

82.  Men,  or  squads  of  men,  who  commit  hostilities,  whether  by 
fighting,  or  inroads  for  destruction  or  plunder,  or  by  raids  of  any 
kind,  without  commission,  without  being  part  and  portion  of  the 
organized  hostile  armj-,  and  without  sharing  continuously  in  the 
war,  but  who  do  so  with  intermitting  returns  to  their  homes  and 
avocations,  or  with  the  occasional  assumption  of  the  semblance  of 
peaceful  pursuits,  divesting  themselves  of  the  character  or  appear- 
ance of  soldiers — such  men,  or  squads  of  men,  are  not  public  ene- 
mies, and  therefore,  if  captured,  are  not  entitled  to  the  privileges 
of  prisoners  of  war,  but  shall  be  treated  summarily  as  highway  rob- 
bers or  pirates. 

83.  Scouts  or  single  soldiers,  if  disguised  in  the  dress  of  the  coun- 
try, or  in  the  uniform  of  the  army  hostile  to  their  own,  employed  in 
obtaining  information,  if  found  within  or  lurking  about  the  lines 
of  the  captor  are  treated  as  spies,  and  suffer  death. 

84.  Armed  prowlers,  by  whatever  names  they  may  be  called,  or 
persons  of  the  enemy's  territory,  who  steal  within  the  lines  of  the 
hostile  army,  for  the  purpose  of  robbing,  killing,  or  of  destroying 
bridges,  roads  or  canals,  or  of  robbing  or  destroying  the  mail,  or 
of  cutting  the  telegraph  wires,  are  not  entitled  to  the  privileges  of 
the  prisoner  of  war. 

85.  War-rebels  are  persons  within  an  occupied  territory  who  rise 
in  arms  against  the  occupying  or  conquering  army,  or  against  the 
authorities  established  by  the  same.  If  captured,  they  may  suffer 
death,  whether  they  rise  singly,  in  small  or  large  bands,  and  wheth- 
er called  upon  to  do  so  by  their  own,  but  expelled,  government  or 
not.  They  are  not  prisoners  of  war;  nor  are  they,  if  discovered 
and  secured  before  their  conspiracy  has  matured  to  an  actual  ris- 
ing, or  to  armed  violence. 

SECTION  v.— SAFE-CONDUCT— SPIES— WAR-TRAITORS 

—CAPTURED  MESSENGERS— ABUSE  OF 

THE  FLAG  OF  TRUCE. 

86.  All  intercourse  between  the  territories  occupied  by  belligerent 
armies,  whether  by  traflBc,  by  letter,  by  travel,  or  in  any  other  way, 
ceases.  This  is  the  general  rule,  to  be  observed  without  special 
proclamation. 


500  APPENDIX   II. 

Exceptions  to  this  rule,  whether  b.\  safe-conduct,  or  permission  to 
trade  on  a  small  or  large  scale,  or  by  exchanging  mails,  or  by  travel 
from  one  territory  into  the  other,  can  take  place  only  according  to 
agreement  approved  by  the  government,  or  by  the  highest  military 
authority. 

Contraventions  of  tliis  rule  are  highly  puni:?hal)le. 

S7.  Ambassadors,  and  all  other  diplomatic  agents  of  neutral  pow- 
ers, accredited  to  the  enemy,  may  receive  safe  conducts  through 
the  territories  occupied  by  the  l)elligerents,  unless  there  are  mili- 
tary reasons  to  the  contrary,  and  unless  they  may  reach  the  place 
of  their  destination  conveniently  by  another  route.  It  implies  no 
international  affront  if  the  safe  conduct  is  declined,  such  passes 
are  usually  given  by  the  supreme  authority  of  the  state,  and  not  by 
subordinate  officers. 

88.  A  spy  is  a  person  who  secretly,  in  disguise  or  under  false  pre- 
tence, seeks  information  with  the  intention  of  communicating  it  to 
the  enemy. 

The  spy  is  piuiishable  with  death  by  hanging  by  the  neck,  wheth- 
er or  not  he  succeeded  in  obtaining  the  information  or  in  conveying 
it  to  the  enemy. 

89.  If  a  citizen  of  the  United  States  obtains  information  in  a  legit- 
imate manner,  and  betrays  it  to  the  enemy,  be  he  a  military  or  civil 
officer,  or  a  private  citizen,  he  shall  suffer  death. 

90.  A  traitor  under  the  law  of  war,  or  a  war-traitor,  is  a  person 
in  a  place  or  district  under  martial  law  who,  unauthorized  by  the 
military  commander,  gives  information  of  any  kind  to  the  enemy, 
or  holds  intercourse  with  him. 

91.  The  war-traitor  is  always  severely  punished.  If  his  offence 
consists  in  betraying  to  the  enemy  anything  concerning  the  condi- 
tion, safety,  operations  or  plans  of  the  troops  holding  or  occupying 
the  place  or  district,  his  punishment  is  death. 

92.  If  the  citizen  or  subject  of  a  country  or  place  invaded  or  con- 
quered gives  information  to  his  own  government,  from  which  he  is 
separated  by  the  hostile  army,  or  to  the  army  of  his  government, 
he  is  a  war-traitor,  and  death  is  the  penalty  of  his  offence. 

93.  All  armies  in  the  field  stand  in  need  of  guides,  and  impress 
them  if  they  cannot  obtain  them  otherwise. 

94.  No  person  having  been  forced  by  the  enemy  to  serve  as  guide 
is  punishable  for  having  done  so. 

95.  If  a  citizen  of  a  hostile  and  invaded  district  voluntarily  serves 
as  a  guide  to  the  enemy,  or  offers  to  do  so,  he  is  deemed  a  war- 
traitor,  and  shall  suffer  death. 

96.  A  citizen  serving  voluntarily  as  a  guide  against  his  own  coun- 
try commits  treason,  and  will  be  dealt  with  according  to  the  law 
of  his  country. 

97.  Guides,  when  it  is  clearly  proved  that  they  have  misled  in- 
tentionally, may  be  put  to  death. 


AMERICAN  INSTRUCTIONS   FOR   GOVERNMENT  OF  ARMIBS.     501 

98.  All  unaiitliorized  or  secret  communication  with  the  enemy  Is 
considered  treasonable  by  the  law  of  war. 

Foreign  residents  in  an  invaded  or  occupied  territory,  or  foreign 
visitors  in  the  same,  can  claim  no  immunity  from  this  law.  They 
may  communicate  with  foreign  parts,  or  with  the  inhabitants  of  the 
hostile  country,  so  far  as  the  military  authority  permits,  but  no 
further.  Instant  expulsion  from  the  occupied  territory  would  he  the 
very  least  punishment  for  the  infraction  of  this  rule. 

99.  A  messenger  carrying  written  dispatches  or  verbal  messages 
from  one  portion  of  the  army,  or  from  a  besieged  place,  to  another 
portion  of  the  same  army,  or  its  government,  if  armed,  and  in  the 
uniform  of  his  army,  and  if  captured  while  doing  so,  in  the  territory 
occupied  by  the  enemy,  is  treated  by  the  captor  as  a  prisoner  of 
war.  If  not  in  uniform,  nor  a  soldier,  the  circumstances  connected, 
Avith  his  capture  must  determine  the  disposition  that  shall  be  made 
of  him. 

100.  A  messenger  or  agent  who  attempts  to  steal  through  the 
territory  occupied  by  the  enemy,  to  further,  in  any  mannei*,  the  in- 
terests of  the  enemy,  if  captured,  is  not  entitled  to  the  privileges 
of  the  prisoner  of  war,  and  may  be  dealt  with  accoi'ding  to  the  cir- 
cumstances of  the  case. 

101.  While  deception  in  war  is  admitted  as  a  just  and  necessary 
means  of  hostility,  and  is  consistent  with  honorable  warfare,  the 
common  law  of  war  allows  even  capital  punishment  for  clandestine 
or  treacherous  attempts  to  injure  an  enemy,  because  they  are  so 
dangerous,  and  it  is  so  difficult  to  guard  against  them. 

102.  The  law  of  war,  like  the  criminal  law  regarding  other  of- 
fences, makes  no  difference  on  account  of  the  difference  of  sexes, 
concerning  the  spy,  the  war-traitor,  or  the  war-rebel. 

103.  Spies,  war-traitors,  and  war-rebels,  are  not  exchanged  accord- 
ing to  the  common  law  of  war.  The  exchange  of  such  persons  would 
require  a  special  cartel,  authorized  by  the  government,  or,  at  a  great 
distance  from  it,  by  the  chief  commander  of  the  army  in  the  held. 

104.  A  successful  spy  or  war-traitor,  safely  returned  to  his  own 
army,  and  afterwards  captured  as  an  enemy,  is  not  subject  to  pun- 
ishment for  his  acts  as  a  spy  or  war-traitor,  but  he  may  be  held  in 
closer  custody  as  a  person  individually  dangerous. 

SECTION  VI.— EXCHANGE  OF  PRISONERS— FLAGS  OP  TRUCE 
—FLAGS  OP  PROTECTION. 

105.  Exchanges  of  prisoners  take  place — number  for  numbei- — 
rank  for  rank — wounded  for  wounded — with  added  condition  tor 
added  condition— such,  for  instance,  as  not  to  serve  for  a  certain 
period. 

100.  In  exchanging  prisoners  of  war,  such  numbers  of  persons  of 
inferior  rank  may  be  substituted  as  an  equivalent  for  one  of  supe- 
rior rank  as  may  be  agreed  upon  by  cartel,  which  requires  the  sane- 


502  APPENDIX  II. 

tlon  of  the  government,  or  of  the  commander  of  the  army  in  the 
field. 

107.  A  prisoner  of  war  Is  in  honor  bound  truly  to  state  to  the 
captor  hi.s  rank;  and  he  is  not  to  assume  a  lower  rank  than  belongs 
to  him,  in  order  to  cause  a  more  advantageous  exchange;  nor  a 
higher  rank,  for  the  purpose  of  obtaining  better  treatment. 

Offenses  to  the  contrary  have  been  justly  punished  by  the  com- 
manders of  released  prisoners,  and  may  be  good  cause  for  refusing 
to  release  such  prisoners. 

108.  The  surplus  number  of  prisoners  of  war  remaining  after  an 
exchange  has  taken  place  is  sometimes  released  either  for  the  pay- 
ment of  a  stipulated  sum  of  money,  or,  in  urgent  cases  of  provision, 
clothing,  or  other  necessaries. 

Such  arrangement,  however,  requires  the  sanction  of  the  highest 
authority. 

109.  The  exchange  of  prisoners  of  war  is  an  act  of  convenience  to 
both  belligerents.  If  no  general  cartel  has  been  concluded,  it  can 
not  be  demanded  by  either  of  them.  No  belligerent  is  obliged  to  ex- 
change prisoners  of  war. 

A  cartel  is  voidable  so  soon  as  either  party  has  violated  it. 

110.  No  exchange  of  prisoners  shall  be  made  except  after  complete 
•capture,  and  after  an  accurate  account  of  them,  and  a  list  of  the 
captured  officers,  has  been  taken. 

111.  The  bearer  of  a  flag  of  truce  cannot  insist  upon  being  ad- 
mitted. He  must  always  be  admitted  with  great  caution.  Unnec- 
essary frequency  is  carefully  to  be  avoided. 

112.  If  the  bearer  of  a  flag  of  truce  offer  himself  during  an  en- 
gagement, he  can  be  admitted  as  a  very  rare  exception  only.  It 
Is  no  breach  of  good  faith  to  retain  such  a  flag  of  truce,  if  admitted 
during  the  engagement.  Firing  is  not  required  to  cease  on  the  ap- 
pearance of  a  flag  of  truce  in  battle. 

113.  If  the  bearer  of  a  flag  of  truce,  presenting  himself  during  an 
engagement,  is  killed  or  wounded,  it  furnishes  no  ground  of  com- 
plaint whatever. 

114.  If  it  be  discovered,  and  fairly  proved,  that  a  flag  of  truce 
has  been  abused  for  surreptitiously  obtaining  military  knowledge, 
the  bearer  of  the  flag  thus  abusing  his  sacred  character  is  deemed 
a  spy. 

So  sacred  is  the  character  of  a  flag  of  truce,  and  so  necessary  is 
its  sacrodness,  that  while  its  abuse  is  an  especially  heinous  offence, 
great  caution  is  requisite,  on  the  other  hand,  in  convicting  the  bear- 
er of  a  flag  of  truce  as  a  spy. 

115.  It  is  customary  to  designate  by  certain  flags  (usually  yellow), 
the  hospitals  in  places  which  are  shelled,  so  that  the  besieging  ene- 
my may  avoid  firing  on  them.  The  same  has  been  done  in  battles, 
when  hospitals  are  situated  within  the  field  of  the  engagement 

116.  Honorable  belligerents  often  request  that  the  hospitals  with- 


AMERICAN   INSTEUCTIONS   FOR   GOVERNMENT  OF  ARMIES.     503 

in  the  territory  of  the  enemy  may  be  designated,  so  that  they  may 
be  spared. 

An  honorable  belligerent  allows  himself  to  be  guided  by  flags  or 
signals  of  protection  as  much  as  the  contingencies  and  the  neces- 
sities of  the  fight  will  permit. 

117.  It  is  justly  considered  an  act  of  bad  faith,  of  infamy  or  fiend- 
ishness,  to  deceive  the  enemy  by  flags  of  protection.  Such  act  of 
bad  faith  may  be  good  cause  for  refusing  to  respect  such  flags. 

118.  The  besieging  belligerent  has  sometimes  requested  the  be- 
sieged to  designate  the  buildings  containing  collections  of  works  of 
art,  scientific  museums,  astronomical  observatories,  or  precious  li- 
braries, so  that  their  destruction  may  be  avoided  as  much  as  pos- 
sible. 

SECTION  VII.— THE  PAROLE. 

119.  Prisoners  of  Tvar  may  be  released  from  captivity  by  exchange, 
and,  under  certain  circumstances,  also  by  parole. 

120.  The  term  parole  designates  the  pledge  of  individual  good 
faith  and  honor  to  do,  or  to  omit  doing,  certain  acts  after  he  who 
gives  his  parole  shall  have  been  dismissed,  wholly  or  partially,  from 
the  power  of  the  captor. 

121.  The  pledge  of  the  parole  is  always  an  individual  but  not  a 
private  act. 

122.  The  parole  applies  chiefly  to  prisoners  of  war  whom  the 
captor  allows  to  return  to  their  country,  or  to  live  in  greater  free- 
dom within  the  captor's  country  or  territory,  on  conditions  stated 
in  the  parole. 

123.  Release  of  prisoners  of  war  by  exchange  is  the  general  rule; 
release  by  parole  is  the  exception. 

124.  Breaking  the  parole  is  punished  with  death  when  the  person 
breaking  the  parole  is  captured  again. 

Accurate  lists,  therefore,  of  the  paroled  persons  must  be  kept  by 
the  belligerents. 

125.  "When  paroles  are  given  and  received,  there  must  be  an  ex- 
change of  two  written  documents,  in  which  the  name  and  rank  of 
the  paroled  individuals  are  accurately  and  truthfully  stated. 

126.  Commissioned  officers  only  are  allowed  to  give  their  parole, 
and  they  can  give  it  only  with  the  permission  of  their  superior,  as 
long  as  a  superior  in  rank  is  within  reach. 

127.  No  non-commissioned  ofhcer  or  private  can  give  his  parole 
except  through  an  officer.  Individual  paroles  not  given  through 
an  officer  are  not  only  void,  but  subject  the  individual  giving  them 
to  the  punishment  of  death  as  deserters.  The  only  admissible  ex- 
ception is  where  individuals,  properly  separated  from  their  com- 
mands, have  suffered  long  confinement  without  the  possibility  ot 
being  paroled  through  an  officer. 

128.  No  paroling  on  the  battle-field,  no  paroling  of  entire  bodies 
of  troops  after  a  battle,  and  no  dismissal  of  large  numbers  of  pris- 


504  APPENDIX   II. 

oners,  -with  a  general  declaration  that  they  are  paroled,  is  permitted, 
or  of  any  value. 

12!).  In  capitulations  for  the  surrender  of  strong  places  or  forti- 
fied camps,  the  commanding  officer,  in  cases  of  urgent  necessity, 
may  agree  that  the  troops  under  his  command  shall  not  light  again 
during  the  war,  unless  exchanged. 

130.  The  usual  pledge  given  in  the  parole  is  not  to  serve  during 
the  existing  war,  unless  exchanged. 

This  pledge  refers  only  to  the  active  service  in  the  field,  against 
the  paroling  belligerent  or  his  allies  actively  engaged  in  the  same 
war.  These  cases  of  breaking  the  parole  are  patent  acts,  and  can 
be  visited  with  the  punishment  of  death;  but  the  pledge  does  not 
refer  to  internal  service,  such  as  recruiting  or  drilling  the  recruits, 
fortifying  places  not  besieged,  quelling  civil  commotions,  fighting 
against  belligerents  unconnected  with  the  paroling  belligerents,  or 
to  civil  or  diplomatic  service  for  which  the  paroled  officer  may  be 
employed. 

131.  If  the  government  does  not  approve  of  the  parole,  the 
paroled  officer  must  return  into  captivity;  and  should  the  enemy 
refuse  to  receive  him,  he  is  free  of  his  parole. 

132.  A  belligerent  government  may  declare,  by  a  general  order, 
whether  it  will  allow  paroling,  and  on  what  conditions  it  will  al- 
low it.     Such  order  is  communicated  to  the  enemy. 

133.  No  prisoner  of  war  can  be  forced  by  the  hostile  government 
to  parole  himself,  and  no  government  is  obliged  to  parole  prisoners 
of  war,  or  to  parole  all  captured  officers  if  it  paroles  any.  As  the 
pledging  of  the  parole  is  an  individual  act,  so  is  paroling,  on  the 
other  hand,  an  act  of  choice  on  the  part  of  the  belligerent. 

134.  The  commander  of  an  occupying  army  may  require  of  the 
civil  officers  of  the  enemy,  and  of  its  citizens,  any  pledge  he  may 
consider  necessary  for  the  safety  or  security  of  his  army;  and  upon 
their  failure  to  give  it-,  he  may  arrest,  confine,  or  detain  them. 


SECTION   VIII.— ARMISTICE— CAPITULATION. 

135.  An  armistice  is  the  cessation  of  active  hostilities  for  a  period 
agreed  upon  betv/een  belligerents.  It  must  be  agreed  upon  in  writ- 
ing, and  duly  ratified  by  the  highest  authorities  of  the  contending 
parties. 

136.  If  an  armistice  be  declared,  without  conditions,  it  extends 
no  further  than  to  require  a  total  cessation  of  hostilities  along  the 
front  of  both  belligerents. 

If  conditions  be  agreed  upon,  they  should  be  clearly  expressed, 
and  must  be  rigidly  adhered  to  by  both  parties.  If  either  party 
violates  any  express  condition,  the  armistice  may  be  declared  null 
and  void  by  the  other. 


AMERICAN   INSTRUCTIONS   FOR   GOVERNMENT  OF  ARMIES.      505 

137.  An  armistice  may  be  general,  and  valid  for  all  points  and 
lines  of  the  belligerents;  or  special — that  is,  referring  to  certain 
troops  or  certain  localities  only. 

An  armistice  may  be  concluded  for  a  definite  time;  or  for  an  in- 
definite time,  during  which  either  belligerent  may  resume  hostilities 
on  giving  the  notice  agreed  upon  to  the  other. 

138.  The  motives  which  induce  the  one  or  the  other  belligerent 
to  conclude  an  armistice,  whether  it  be  expected  to  be  preliminary 
to  a  treaty  of  peace,  or  to  prepare  during  the  armistice  for  a  more 
vigorous  prosecution  of  the  war,  do  in  no  way  affect  the  character 
of  the  armistice  itself. 

139.  An  armistice  is  binding  upon  the  belligerents  from  the  day 
of  the  agreed  commencement;  but  the  officers  of  the  armies  are 
responsible  fi-om  the  day  only  when  they  receive  official  informa- 
tion of  its  existence. 

140.  Commanding  officers  have  the  right  to  conclude  armistices 
binding  on  the  distz'ict  over  which  their  command  extends;  but  sucli 
armistice  is  subject  to  the  ratification  of  the  superior  authority, 
and  ceases  so  soon  as  it  is  made  known  to  the  enemy  that  the  armi- 
stice is  not  ratified,  even  if  a  certain  time  for  the  elapsing  between 
giving  notice  of  cessation  and  the  resumption  of  hostilities  should 
have  been  stipulated  for. 

141.  It  is  incumbent  upon  the  conti'acting  parties  of  an  armistice 
to  stipulate  what  intercourse  of  persons  or  traffic  between  the  in- 
habitants of  the  territories  occupied  by  the  hostile  armies  shall  be 
allowed,  if  any. 

If  nothing  is  stipulated,  the  intercourse  remains  suspended,  as 
during  actual  hostilities. 

142.  An  armistice  is  not  a  partial  or  a  temporary  peace;  it  is  only 
the  suspension  of  military  operations  to  the  extent  agreed  upon  by 
the  parties. 

143.  When  an  armistice  is  concluded  between  a  fortified  place 
and  the  army  besieging  it,  it  is  agreed  by  all  the  authorities  on  this 
subject  that  the  besieger  must  cease  all  extension,  perfection,  or 
advance  of  his  attacking  works,  as  much  so  as  from  attacks  by  main 
force. 

But  as  there  is  a  difference  of  opinion  among  martial  jurists,^ 
whether  the  besieged  have  the  right  to  repair  breaches  or  to  erect 
new  works  of  defence  within  the  place  during  an  armistice,  this 
point  should  be  determined  by  express  agreement  between  the 
parties. 

14r4.  So  soon  as  a  capitulation  is  signed,  the  capitulator  has  no 
right  to  demolish,  destroy,  or  injure  the  works,  arras,  stores,  or  am- 
munition, in  his  possession,  during  the  time  which  elapses  between 
the  signing  and  the  execution  of  the  capitulation,  unless  otherwise 
stipulated  in  the  same. 

145.  When  an  armistice  is  clearly  broken  by  one  of  the  parties,, 
the  other  party  is  released  from  all  obligations  to  observe  it. 


a06  APPENDIX  II. 

14G.  Prisoners,  taken  in  the  act  of  breaking  an  armistice,  must  be 
treated  as  prisoners  of  war,  the  officer  alone  boinj?  responsible  who 
g-ives  the  order  for  such  a  violation  of  an  armistice.  The  highest 
authority  of  the  belligerent  aggrieved  may  demand  redress  for  the 
infraction  of  an  armistice. 

147.  Belligerents  sometimes  conclude  an  armistice  while  their 
plenipotentiaries  are  met  to  discuss  the  conditions  of  a  treaty  of 
peace;  but  plenipotentiaries  may  meet  without  a  preliminary  armi- 
stice: in  the  latter  case,  the  war  is  carried  on  without  any  abate- 
ment. 

SECTION  IX.— ASSASSINATION. 

148.  The  law  of  war  does  not  allow  proclaiming  either  an  indi- 
vidual belonging  to  the  hostile  army,  or  a  citizen,  or  a  subject  of  the 
hostile  government,  an  outlaw,  who  may  be  slain  without  trial  by 
any  captor,  any  more  than  the  modern  law  of  peace  allows  such 
international  outla^ATy;  on  the  contrary,  it  abhors  such  outrage. 
The  sternest  retaliation  should  follow  the  murder  committed  in  con- 
sequence of  such  proclamation,  made  by  whatever  authority.  Civil- 
ized nations  look  with  horror  upon  offers  of  rewards  for  the  assas- 
sination of  enemies,  as  relapses  into  barbarism. 

SECTION   X.— INSURRECTION— CIVIL   WAR— REBELLION. 

149.  Insurrection  is  the  rising  of  people  in  arms  against  their 
government,  or  a  portion  of  it,  or  against  one  or  more  of  its  laws, 
or  against  an  officer  or  officers  of  the  government.  It  may  be  con- 
fined to  mere  armed  resistance,  or  it  may  have  greater  ends  in  view. 

150.  Civil  war  is  war  between  two  or  more  portions  of  a  country 
or  state,  each  contending  for  the  mastery  of  the  whole,  and  eacli 
claiming  to  be  the  legitimate  government.  The  term  is  also  some- 
times applied  to  war  of  rebellion,  when  the  rebellious  provinces  or 
portions  of  the  state  are  contiguous  to  those  containing  the  seat  of 
government.  * 

151.  The  term  rebellion  is  applied  to  an  insurrection  of  large  ex- 
tent, and  is  usually  a  war  between  the  legitimate  government  of 
a  country  and  portions  or  provinces  of  the  same  who  seek  to  throw 
off  their  allegiance  to  it,  and  set  up  a  government  of  their  own. 

152.  When  humanity  Induces  the  adoption  of  the  rules  of  regular 
war  toward  rebels,  whether  the  adoption  is  partial  or  entire,  it  does 
in  no  way  whatever  imply  a  partial  or  complete  acknowledgment 
of  their  government,  if  they  have  set  up  one,  or  of  them,  as  an  inde- 
pendent or  sovereign  power.  Neutrals  have  no  right  to  make  the 
adoption  of  the  rules  of  war  by  the  assailed  government  toward 
rebels  the  ground  of  their  own  acknowledgment  of  the  revolted  peo- 
ple as  an  independent  power. 

153.  Treating  captured  rebels  as  prisoners  of  war,  exchanging 
them,  concluding  of  cartels,  capitulations,  or  other  warlike  agree- 


AMERICAN    INSTRUCTIONS   FOR   GOVERNMENT  OF   ARMIES.     507 

tiients  with  theui ;  addressing  officers  of  a  rebel  army  by  tbe  rank 
they  may  have  in  the  same;  accepting  flags  of  truce;  or,  on  the 
other  hand,  proclaiming  martial  law  in  their  territory,  or  levying 
war-taxes  or  forced  loans,  or  doing  any  other  act  sanctioned  or  de- 
manded by  the  law  and  usages  of  public  war  between  sovereign  bel- 
ligerents, neither  proves  nor  establishes  an  acknowledgment  of  the 
rebellious  people,  or  of  the  government  which  they  may  have  erected, 
as  a  public  or  sovereign  power.  Nor  does  the  adoption  of  the  rules 
of  w^ar  toward  rebels  imply  an  engagement  with  them  extending  be- 
yond the  limits  of  these  rules.  It  is  victory  in  the  field  that  ends 
the  strife,  and  settles  the  future  relations  between  the  contending 
parties. 

154.  Treating,  in  the  field,  the  rebellious  enemy  according  to  the 
law  and  usages  of  "war,  has  never  prevented  the  legitimate  govern- 
ment from  trying  the  leaders  of  the  rebellion  or  chief  rebels  for  high 
treason,  and  from  treating  them  accordingly,  unless  they  are  in- 
cluded in  a  general  amnesty. 

1.55.  All  enemies  in  regular  war  are  divided  into  two  general 
classes;  that  is  to  say,  into  combatants  and  noncombatants,  or  un- 
armed citizens  of  the  hostile  government. 

The  military  commander  of  the  legitimate  government,  in  a  war 
of  rebellion,  distinguishes  between  the  loyal  citizen  in  the  revolted 
portion  of  the  country  and  the  disloyal  citizen.  The  disloyal  citizens 
may  further  be  classified  into  those  citizens  known  to  sympathize 
with  the  rebellion,  without  positively  aiding  it,  and  those  who,  with- 
out taking  up  arms,  give  positive  aid  and  comfort  to  the  rebellious 
enemy,  without  being  bodily  forced  thereto. 

156.  Common  justice  and  plain  expediency  require  that  the  mili- 
tary commander  protect  the  manifestly  loyal  citizens,  in  revolted 
territories,  against  the  hardships  of  the  war,  as  much  as  the  com- 
mon misfortune  of  all  war  admits. 

The  commander  will  throw  the  burden  of  the  war,  as  much  as  lies; 
within  his  power,  on  the  disloyal  citizens  of  the  revolted  portion  or 
province,  subjecting  them  to  a  stricter  police  than  the  noncombat- 
ant  enemies  have  to  suffer  in  regular  war;  and  if  ho  deems  it  ap- 
propriate, or  if  his  government  demands  of  him,  that  every  citizen 
shall,  by  an  oath  of  allegiance,  or  by  some  other  manifest  act.  de- 
clare his  fidelity  to  the  legitimate  government,  he  may  expel,  trans- 
fer, imprison,  or  fine  the  revolted  citizens  who  refuse  to  pledge  them- 
selves anew  as  citizens  obedient  to  the  law,  and  loyal  to  the  govern- 
ment. 

Whether  it  is  expedient  to  do  so,  and  whether  reliance  can  be 
placed  upon  such  oaths,  the  commander  or  his  government  have  the 
right  to  decide. 

157.  Armed  or  unarmed  resistance  by  citizens  of  the  United  States 
against  the  lawful  movements  of  their  troops,  is  levying  war  against 
the  United  States,  and  is  therefore  treason. 


APPENDIX  III 

CONVENTION  FOR  THE  AMELIORATION  OF  THE 

CONDITION  OF  THE  WOUNDED  IN  ARMIES 

IN  THE  FIELD.    GENEVA,  JULY  6,  1906 


[Names  of  States.] 

Being  equally  animated  by  the  desire  to  lessen  the  inherent  evils 
of  warfare  as  far  as  is  within  their  power,  and  wishing  for  this  pur- 
pose to  improve  and  supplement  the  provisions  agreed  upon  at  Gen- 
eva on  August  22,  1SG4,  for  the  amelioration  of  the  condition  of  the 
wounded  in  armies  in  the  field. 

Have  decided  to  conclude  a  new  convention  to  that  effect,  and 
have  appointed  as  their  plenipotentiaries,  to  wit: 

[Names  of  delegates.] 
Who,  after  having  communicated  to  each  other  their  full  powers, 
found  in  good  and  due  form,  have  agreed  on  the  following; 

[Translation.] 
CHAPTER  I.— THE   SICK  AND   WOUNDED. 

Article  1.  OflBcers,  soldiers,  and  others  persons  officially  attached 
to  armies  who  are  sick  or  wounded  shall  be  respected  and  cared 
for,  without  distinction  of  nationality,  by  the  belligerent  in  whose 
power  they  are. 

A  belligerent,  however,  when  compelled  to  leave  his  wounded  in 
the  hands  of  his  adversary,  shall  leave  with  them,  so  far  as  mili- 
tary conditions  permit,  a  portion  of  the  personnel  and  materiel  of  his 
sanitary  service  to  assist  in  caring  for  them. 

Art.  2.  Subject  to  the  care  that  must  be  taken  of  them  under  the 
preceding  article,  the  sick  and  wounded  of  an  Army  who  fall  into 
the  power  of  the  other  belligerent  become  prisoners  of  war,  and  the 
general  rules  of  international  law  in  respect  to  prisoners  become 
applicable  to  them. 

The  belligerents  remain  free,  however,  to  mutually  agree  upon 
such  clauses,  by  way  of  exception  or  favor,  in  regard  to  sick  and 
wounded  prisoners  as  they  may  deem  proper.  They  shall  have  au- 
thority to  agree: 

1.  To  mutually  return  the  sick  and  wounded  left  on  the  lield  of 
battle  after  an  engagement. 

WiLS.lNT.L.  (508) 


GENEVA    CONVENTION,   1!X)6.  509 

2.  To  send  back  to  their  own  country  the  sick  and  wonndefl  who 
have  recovered,  or  who  are  in  a  condition  to  be  transported,  and 
whom  they  do  not  desire  to  retain  as  prisoners. 

3.  To  send  the  sick  and  wounded  of  the  enemy  to  a  neutral  state, 
with  its  consent  and  on  condition  that  it  shall  charge  itself  with 
their  interment  until  the  close  of  hostilities. 

Art.  3.  After  every  engagement  the  belligerent  who  remains  In 
possession  of  the  field  of  battle  shall  take  measures  to  s^earch  for 
the  wounded  and  to  protect  the  wounded  and  dead  from  spoliation 
and  ill  treatment. 

He  will  see  that  a  careful  examination  is  made  of  the  bodies  of 
the  dead  prior  to  their  interment  or  incineration. 

Art.  4.  As  soon  as  possible  each  belligerent  shall  forward  to  the 
authorities  of  their  country  or  Army  the  military  tokens,  or  badges 
of  identification,  found  upon  the  bodies  of  the  dead,  together  with 
a  list  of  the  sick  and  wounded  taken  in  charge  by  him. 

Belligerents  will  keep  each  other  mutually  advised  of  interments 
and  transfers,  together  with  admissions  to  hospitals  and  deaths 
which  occur  among  the  sick  and  woanded  in  their  hands.  They  will 
collect  all  personal  belongings,  valuables,  letters,  etc.,  which  are 
found  upon  the  field  of  battle,  or  have  been  left  by  the  sick  or  wound- 
ed, or  by  those  who  have  died  in  sanitary  formations  or  other  estab- 
lishments, for  transmission  to  interested  persons  through  the  author- 
ities of  their  own  country- 
Art.  5.  Military  authority  may  make  an  appeal  to  the  charitable 
zeal  of  the  inhabitants  to  receive  and,  under  his  supervision,  to  care 
for  the  sick  and  wounded  of  the  armies,  by  granting  to  persons  re- 
sponding to  such  appeals  special  protection  and  certain  immunities. 

CHAPTER  n.— SANITARY  FORMATIONS  AND  ESTABLISH- 
MENTS. 

Art.  6.  Movable  sanitary  formations  (i.  e.,  those  which  are  intend- 
ed to  accompany  armies  in  the  field)  and  the  fixed  establishments 
belonging  to  the  sanitary  service  shall  be  protected  and  respected 
by  belligerents. 

Art.  7.  The  protection  due  to  sanitary  formations  and  establish- 
ments ceases  If  they  are  used  to  commit  acts  injurious  to  the  enemy. 

Art.  S.  A  sanitary  formation  or  establishment  shall  not  be  depriv- 
ed of  the  protection  accorded  by  article  6  by  the  fact  that: 

1.  The  personnel  of  a  formation  or  establishment  is  armed  and 
uses  its  arms  In  self-defense  or  in  defense  of  Its  sick  and  wounded. 

2.  In  the  absence  of  armed  hospital  attendants,  the  formation  is 
guarded  by  an  armed  detachment  or  by  sentinels  regularly  estab- 
lished. 

3.  Arms  or  cartridges,  taken  from  the  wounded  and  not  yet  turn- 
ed over  to  the  proper  authorities,  are  found  in  the  formation  or  es- 
tablishment. 


ilO  APPENDIX   III. 


CHAPTER  III.— PERSONNEL. 

Art  9.  The  persouiiel  exclusively  cbarged  with  the  removal,  trans- 
portation, and  treatment  of  the  sick  and  -woundod,  as  well  as  with 
the  administration  of  sanitary  formations  and  esta)ilishmonts,  and 
the  chaplains  attached  to  armies  shall  be  respected  and  protected 
under  all  circumstances.  If  they  fall  into  the  hands  of  the  enemy 
they  shall  not  be  regarded  as  prisoners  of  war. 

These  provisions  apply  to  the  personnel  of  the  guard  of  sanitary 
formations  and  establishments  in  the  case  provided  for  in  section  2 
of  article  8. 

Art.  10.  The  personnel  of  volunteer  aid  societies,  duly  recognized 
and  authorized  by  their  respective  governments,  who  are  employed 
in  the  sanitary  formations  and  establishments  of  armies,  are  assimi- 
lated to  the  personnel  contemplated  in  the  preceding  article,  upon 
condition  that  the  said  personnel  shall  be  subject  to  military  laws 
and  regulations. 

Each  state  shall  make  known  to  the  other  either  in  time  of  peace 
or  at  the  opening  or  during  the  progress  of  hostilities — in  any  case, 
before  actual  employment — the  names  of  the  societies  which  it  has 
authorized  to  render  assistance,  under  its  responsibility,  in  the  of- 
ficial sanitary  service  of  its  armies. 

Art.  11.  A  recognized  society  of  a  neutral  state  can  not  lend  the 
services  of  its  sanitary  personnel  and  formations  to  a  belligerent  ex- 
cept with  the  prior  consent  of  its  own  government  and  the  authority 
of  such  belligerent.  The  belligerent  who  has  accepted  such  assist- 
ance is  required  to  notify  the  enemy  before  making  any  use  thereof. 

Art.  12.  Persons  described  in  articles  9,  10,  and  11  will  continue  in 
the  exercise  of  their  functions  after  they  have  fallen  into  the  power 
of  the  enemy  and  under  his  direction. 

When  their  co-operation  is  no  longer  indispensable  they  will  be 
sent  back  to  their  army  or  country,  within  such  period  and  by  such 
route  as  may  accord  with  military  necessity. 

They  will  carry  with  them  such  effects,  instruments,  arms,  and 
horses  as  are  their  private  property. 

Art.  13.  While  they  remain  in  his  power,  the  enemy  will  secure 
to  the  personnel  mentioned  in  article  9  the  same  pay  and  allowances 
to  which  persons  of  the  same  grade  in  his  own  Army  are  entitled. 

CHAPTER  IV.— :mat]i:riel.. 

Art.  14.  Mobile  sanitary  formations  that  have  fallen  Into  the  pow- 
er of  the  enemy  shall  retain  their  materiel  and  means  of  transporta- 
tion of  whatever  kind,  including  teams,  whatever  maj-  be  the  means 
of  transportation,  and  the  conducting  personnel. 

Competent  military  authority,  however,  shall  have  the  right  to 
employ  them  in  caring  for  the  sick  and  wounded.     The  restitution 


GENEVA    CONVENTION,   1906.  511 

of  the  mat(5riel  shall  take  place  in  accordance  with  the  conditions 
prescribed  for  the  sanitary  personnel,  and,  as  far  as  possible,  at  the 
same  time. 

Art.  15.  Buildings  and  materiel  pertaining  to  fixed  establishments 
shall  remain  subject  to  the  laws  of  war,  but  can  not  be  diverted 
from  their  use  so  long  as  they  are  necessary  for  the  sick  and  wound- 
ed. Commanders  of  troops  engaged  in  operations,  however,  may  use 
them  in  case  of  important  military  necessity,  if  before  such  use,  the 
sick  and  wounded  who  are  in  them  have  been  provided  for. 

Art.  16.  The  materiel  of  aid  societies,  admitted  to  the  benefits  of 
this  convention  in  conformity  to  the  conditions  herein  prescribed, 
is  regarded  as  private  property  and,  as  such,  will  be  respected  under 
all  circumstances,  save  that  it  is  subject  to  the  right  of  requisition 
by  belligerents  in  conformity  to  the  laws  and  usages  of  war. 

CHAPTER  v.— CONVOYS  OP  EVACUATION. 

Art.  17.  Convoys  of  evacuation  shall  be  treated  as  movables  sani- 
tary formations  with  the  following  exceptions: 

1.  A  belligerent  intercepting  a  convoy  may,  if  required  by  military 
necessity,  bi'eak  up  such  convoy  by  charging  himself  with  the  care 
of  the  sick  and  wounded  whom  it  contain. 

2.  In  this  case  the  obligation  to  rostore  the  sanitary  personnel,  as 
provided  for  in  article  12,  shall  be  extended  to  include  the  entire 
military  personnel  employed,  under  proper  authority,  in  the  trans- 
portation and  protection  of  the  convoy. 

The  obligation  to  return  the  sanitary  materiel  as  provided  for  in 
article  14  shall  apply  to  railway  trains  and  vessels  intended  for  in- 
terior navigation  which  have  been  especially  equipped  for  evacua- 
tion purposes,  together  with  the  equipment  of  such  vehicles,  trains, 
and  vessels  which  belong  to  the  sanitary  service. 

Military  vehicles,  with  their  teams,  other  than  those  belonging  to 
the  sanitary  service,  may  be  captured. 

Civilians  and  various  means  of  transportation  obtained  by  req- 
uisition, including  railway  materiel  and  vessels  utilized  for  convoys, 
are  subject  to  the  general  rules  of  international  law. 

CHAPTER  VI.— DISTINCTIVE  EMBLEM. 

Art.  18.  In  homage  to  Switzerland  the  heraldic  sign  of  the  red 
cross  on  a  white  ground,  formed  by  the  reversal  of  the  federal 
colors,  is  continued  as  the  emblem  and  distinctive  sign  of  the  sani- 
tary service  of  armies. 

Art.  19.  This  emblem  appears  on  flags  and  brassards  as  well  as 
upon  all  materiel  appertaining  to  the  sanitary  service,  with  the  per- 
mission of  competent  military  authority. 

Art.  20.  The  personnel  protected  by  the  provisions  of  paragraph 
1,  article  9,  and  articles  10  and  11  will  wear  attached  to  the  left 


512  APPENDIX   III. 

arm  a  brassard  bearing  a  red  cross  on  a  white  ground,  which  will 
be  issued  and  stamped  by  competent  military  authority,  and  accom- 
panied by  a  certificate  of  identity  in  the  case  of  persons  attached  to 
the  sanitary  service  of  armies  who  do  not  have  military  uniform. 

Art.  21.  The  distinctive  flag  of  the  convention  can  only  be  dis- 
played, with  the  consent  of  the  military  authorities  over  sanitary 
formations  and  establishments  which  the  convention  provides  shall 
be  respected,  and  with  the  consent  of  the  military  authorities.  It 
shall  be  accompanied  by  the  national  flag  of  the  belligerent  to  whose 
service  the  formation  or  establishment  is  attached. 

Sanitary  formations  which  have  fallen  into  the  power  of  the 
enemy,  however,  shall  fly  no  other  flag  than  that  of  the  Red  Cross 
so  long  as  they  continue  in  that  situation. 

Art.  22.  Neutral  sanitary  formations  which,  under  the  conditions 
i?et  forth  In  article  11,  have  been  authorized  to  render  their  services 
shall  fly,  with  the  flag  of  the  convention,  the  national  flag  of  the 
belligerent  to  which  they  are  attached.  The  provisions  of  the  sec- 
ond paragraph  of  the  preceding  article  are  applicable  to  them. 

Art.  23.  The  emblem  of  the  red  cross  on  a  white  ground  and  the 
words  Red  Cross  or  Geneva  Cross  may  only  be  used,  whether  in 
time  of  peace  or  war,  to  protect  or  designate  sanitary  formations 
and  establishments,  the  personnel  and  materiel  protected  by  the 
convention. 

CHAPTER  VII.— APPLICATION  AND  EXECUTION  OF  THE 
CONVENTION. 

Art.  24.  The  provisions  of  the  present  convention  are  obligatory 
on  the  contracting  powers  only,  in  case  of  war  between  two  or  more 
of  them.  The  said  provisions  shall  cease  to  be  obligatory  from  the 
time  when  one  of  the  belligerent  powers  should  not  be  signatory  to 
the  convention. 

Art.  25.  The  commanders  In  chief  of  the  belligerent  armies  shall 
have  to  provide  for  the  details  of  execution  of  the  foregoing  articles, 
as  well  as  for  unforeseen  cases,  in  accordance  with  the  instructions 
of  their  respective  governments,  and  conformably  to  the  general 
principles  of  this  convention. 

Art.  26.  The  signatory  governments  shall  take  the  necessary  steps 
to  acquaint  their  troops,  and  particularly  the  protected  personnel, 
with  the  provisions  of  this  convention  and  to  make  them  known  to 
the  people  at  large. 

CHAPTER  VIII.— REPRESSION  OF  ABUSES  AND  IN- 
FRACTIONS. 

Art.  27.  The  signatory  powers  whose  legislation  should  not  now 
be  adequate  engage  to  take  or  recommend  to  their  legislatures  such 
measures  as  may  be  necessary  to  prevent  the  use,  by  private  per- 


GENEVA   CONVENTION,  1906.  513 

sons  or  by  societies  other  than  those  upon  which  this  convention 
confers  the  right  thereto,  of  the  emblem  or  name  of  the  Red  Cross 
or  Geneva  Cross,  particularly  lor  commercial  purposes  by  means  of 
trade  marks  or  commercial  labels. 

The  prohibition  of  the  use  of  the  emblem  or  name  in  question  shall 
take  effect  from  the  time  set  by  each  act  of  legislation  and  not 
later  than  five  years  after  this  convention  goes  into  effect.  Upon 
the  said  going  into  effect,  it  shall  be  unlawful  to  use  a  trade  mark 
or  commercial  label  contrary  to  such  prohibition. 

.  Art.  2S.  In  the  event  of  their  military  penal  laws  being  insufficient, 
the  signatory  governments  also  engage  to  take,  or  to  recommend  to 
their  legislatures,  the  necessary  measures  to  repress,  in  time  of  war. 
individual  acts  of  pillage  and  ill  treatment  of  the  sick  and  wounded 
of  the  armies,  as  well  as  to  punish,  as  usurpations  of  military  In- 
signia, the  wrongful  use  of  the  flag  and  brassard  of  the  Red  Cross 
by  military  persons  or  private  individuals  not  protected  by  the 
present  convention. 

They  will  communicate  to  each  other  through  the  Swiss  Federal 
Council  the  measures  taken  with  a  view  to  such  repression,  not 
later  than  five  years  from  the  ratification  of  the  present  conven- 
tion. 

GENERAL  PROVISIONS. 

Art.  29.  The  present  convention  shall  be  ratified  as  soon  as  pos- 
sible.   The  ratifications  will  be  deposited  at  Berne. 

A  record  of  the  deposit  of  each  act  of  ratification  shall  be  pre- 
pared, of  which  a  duly  certified  copy  shall  be  sent,  through  diplo- 
matic channels,  to  each  of  the  contracting  powers. 

Art.  30.  The  present  convention  shall  become  operative,  as  to 
each  power,  six  months  after  the  date  of  deposit  of  its  ratification. 

Art.  31.  The  present  convention,  when  duly  ratified,  shall  super- 
sede the  Convention  of  August  22,  1864,  in  the  relations  between 
the  contracting  states. 

The  Convention  of  18G4  remains  in  force  in  the  relations  between 
the  parties  who  signed  it  but  who  should  not  also  ratify  the  present 
convention. 

Art.  32.  The  present  convention  may,  until  December  31,  proximo, 
be  signed  by  the  powers  represented  at  the  conference  which  opened 
at  Geneva  on  June  11,  1906,  as  well  as  by  the  powers  not  represented 
at  the  conference  who  have  signed  the  Convention  of  1864. 

Such  of  the  powers  as  shall  not  have  signed  the  present  conven- 
tion on  or  before  December  31,  1906,  will  remain  at  liberty  to  ac- 
cede to  it  after  that  date.  They  shall  signify  their  adhesion  in  a 
written  notification  addressed  to  the  Swiss  Federal  Council,  and 
communicated  to  all  the  contracting  powers  by  the  said  Council. 

Other  powers  may  request  to  adhere  in  the  same  manner,  but 
their  request  shall  only  be  effective  if,  within  the  period  of  one 
year  from  its  notification  to  the  Federal  Council,  such  Council  has 

WiLS.lNT.L.— 33 


514  APPENDIX   III. 

not  been  advised  of  any  opposition  on  the  part  of  any  of  the  con- 
tracting powers. 

Art.  33.  Each  of  the  contracting  parties  shall  have  the  right  to 
denounce  the  present  convention.  This  denunciation  shall  only  be- 
come operative  one  year  after  a  notification  in  writing  shall  have 
been  made  to  the  Swiss  Federal  Council,  which  shall  forthwith  com- 
municate such  notification  to  all  the  other  contracting  parties. 

This  denunciation  shall  only  become  operative  in  respect  to  the 
power  which  has  given  it. 

In  faith  whereof  the  plenipotentiaries  have  signed  the  present 
convention  and  affixed  their  seals  thereto. 

Done  at  Geneva,  the  sixth  day  of  July,  one  thousand  nine  hun- 
dred and  six,  in  a  single  copy,  which  shall  remain  in  the  archives 
of  the  Swiss  Confederation  and  certified  copies  of  which  shall  be 
delivered  through  the  diplomatic  channel  to  the  contracting  parties. 

[Here  follow  the  signatures.] 


APPENDIX  IV 

HAGUE  CONVENTIONS. 


FINAL  ACT  OF  THE  SECOND  INTERNATIONAL 
PEACE  CONFERENCE.! 


The  Second  International  Peace  Conference,  proposed  in  the  first 
instance  by  the  President  of  the  United  States  of  America,  having 
been  convolved,  on  the  invitation  of  His  Majestic  the  Emperor  of  AJl 
the  Kussias,  by  Her  Majesty  the  Queen  of  the  Netherlands,  assem- 
bled on  the  15th  June,  1907,  at  The  Hague,  in  the  Hall  of  the 
Knights,  for  the  purpose  of  giving  a  fresh  development  to  the  hu- 
manitarian principles  which  served  as  a  basis  for  the  work  of  the 
First  Conference  of  1899. 

The  following  Powers  took  part  in  the  Conference,  and  appointed 
the  Delegates  named  below: 

[Names  of  forty-four  states  and  delegates.] 

At  a  series  of  meetings,  held  from  the  1.5th  June  to  the  18th  Oc- 
tober, 1907,  in  which  the  above  Delegates  were  throughout  animated 
by  the  desire  to  realize.  In  the  fullest  possible  measure,  the  gen- 
erous views  of  the  august  initiator  of  the  Conference  and  the  In- 


1  Introductory  Note. 

The  Second  International  Peace  Conference  was  held  at  The  Hague 
from  June  15  to  October  18.  1907. 

Forty-four  states  signed  the  conventions,  with  or  without  reservations. 
The  states,  in  alphabetical  order  of  names  in  the  French  language,  are: 
Germany,  United  States  of  America,  Argentina,  Austria-Hungary,  Bel- 
gium. Bolivia.  Brazil,  Bulgaria,  Chile,  China,  Colombia,  Cuba,  Denmark, 
Dominican  Republic,  Ecuador,  Spain,  France,  Great  Britain.  Greece, 
Guatemala,  Haiti,  Italy,  Japan,  Luxembourg,  Mexico,  Montenegro,  Nica- 
ragua, Norway,  Panama,  Paraguay,  Netherlands,  Peru,  Persia,  Portugal, 
Roumania,  Russia.  Salvador,  Servia,  Siam,  Sweden,  Switzerland,  Turkey, 
Uruguay,  and  Venezuela. 

The  delegates  from  the  United  States  were  Joseph  H.  Choate,  Horace 
Porter,  Uriah  M.  Rose,  David  Jayne  Hill,  Charles  S.  Sperry,  George  B. 
Davis,  William  I.  Buchanan,  James  Brown  Scott,  and  Charles  Henry 
Butler. 

The  Conference  drew  up  thirteen  conventions  and  one  declaration.  The 
conventions  were  to  bear  date  of  October  IS,  1907,  and  the  states  repre- 
sented might  sign  up  to  June  30.  1908. 

To  avoid  unnecessary  repetition,  the  names  of  the  states  and  of  the 
delegates  are  omitted  in  reproducing  the  text  of  these  conventions.  In 
WiLS.lNT.L.  (515) 


516  APPENDIX   IV. 

tentions  of  their  Governments,  the  Conference  drew  up  for  submis- 
sion for  signature  by  the  Plenipotentiaries,  the  text  of  the  Con- 
ventions and  of  the  Declaration  enumerated  below^  and  annexed  to 
the  present  Act: 

1.  Convention  for  the  Pacific  Settlement  of  International  Dis- 

putes. 

2.  Convention  Respecting  the  Limitation  of  the  Employment 

of  Force  for  the  Recovery  of  Contract  Debts. 

3.  Convention  Relative  to  the  Opening  of  Hostilities. 

4.  Convention  Respecting  the  Laws  and  Customs  of  War  on 

Land. 

5.  Convention  Respecting  the  Rights   and  Duties  of   Neutral 

Powers  and  Persons  in  Case  of  War  on  Land. 

6.  Convention  Relative  to  the  Statns  of  Enemy  Merchant-Ships 

at  the  Outbreak  of  Hostilities. 

7.  Convention   Relative  to  the  Conversion  of  Merchant-Ships 

into  War-Ships. 

8.  Convention  Relative  to  the  Laying  of  Automatic  Submarine 

Contact   Mines. 

9.  Convention  Respecting  Bombardment  by   Naval   Forces  in 

Time  of  War. 

10.  Convention  for  the  Adaptation  to  Naval  War  of  the  Princi- 

ples of  the  Geneva  Convention. 

11.  Convention  Relative  to  Certain  Restrictions  with  Regard  to 

the  Exercise  of  the  Right  of  Capture  in  Naval  War. 

12.  Convention   Relative   to   the  Creation   of   an   International 

Prize  Court. 

13.  Convention  Concerning  the  Rights  and  Duties  of  Neutral 

Powers  in  Naval  War. 

14.  Declaration  Prohibiting  the  Discharge   of  Projectiles   and 

Explosives  from  Balloons. 

These  Conventions  and  Declaration  shall  form  so  many  separate 
Acts.     These  Acts  shall  be  dated  this  day,  and  may  be  signed  up 

certain  cases  the  substance  of  the  conventions  is  inserted  in  the  text  and 
is  not  reprinted  in  the  appendices. 

The  articles  as  to  ratification  and  denunciation  are  in  the  main  sim- 
ilar. These  are  printed  in  the  First  Convention,  articles  xcii— xcvil.  (Ar- 
ticle xciv  applies  particularly  to  the  First  Convention.)  The  articles  as 
to  ratification  are  omitted  in  the  text  of  other  conventions,  unless  there 
are  clauses  not  generally  applicable. 

The  translation  is  in  substance  that  submitted  to  the  United  States 
Senate  by  the  Secretary  of  State  in  Document  No.  444,  60th  Congress, 
l.st  Session,  1908.  The  French  text  is  the  ofiirial  text,  and  may  be  found 
in  British  Parliamentary  Papers,  Miscellaneous,  No.  1  (1908),  Cd.  3857, 
in  Supplement,  American  Journal  of  International  Law,  Vol.  2,  Nos.  1 
and  2,  1908,  Scott,  Texts  of  the  Peace  Conferences  at  The  Hague,  1809 
and  1907.  and  Higgins,  The  Hague  Peace   Conferences. 

Discussions  of  the  several  conventions  agreed  upon  at  The  Hague  in 
1907  can  be  found  in  the  American  Journal  of  International  Law,  Vol.  2, 
1908. 


HAGUE   CONVENTIONS.  517 

to  the  30th  June,  1908,  at  The  Hague,  by  the  Plenipotentiaries  of 
the  Powers  represented  at  the  Second  Peace  Conference. 

The  Conference,  actuated  hj  the  spirit  of  mutual  agreement  and 
concession  characterizing  its  deliberations,  has  agreed  upon  the  fol- 
lowing Declaration,  which,  while  reserving  to  each  of  the  Powers 
represented  full  liberty  of  action  as  regards  voting,  enables  them 
to  affirm  the  principles  which  they  regard  as  unanimously  admitted: 

It  is  unanimous^ 

1.  In  admitting  the  principle  of  compulsory  arbitration. 

2.  In  declaring  that  certain  disputes.  In  particular  those  re- 

lating to  the  interpretation  and  application  of  the  pro- 
visions of  International  Agreements,  may  be  submitted  to 
compulsory  arbitration  without  any  restriction. 

Finally,  It  is  unanimous  in  proclaiming  that,  although  it  has  not 
yet  been  found  feasible  to  conclude  a  Convention  in  this  sense, 
nevertheless  the  divergences  of  opinion  which  have  come  to  light 
have  not  exceeded  the  bounds  of  judicial  controversy,  and  that,  by 
working  together  here  during  the  past  four  months,  the  collected 
Powers  not  only  have  learnt  to  understand  one  another  and  to  draw 
closer  together,  but  have  succeeded  in  the  course  of  this  long  collab- 
oration in  evolving  a  very  lofty  conception  of  the  common  welfare 
of  humanity. 

The  Conference  has  further  unanimously  adopted  the  following 
Resolution: 

"The  Second  Peace  Conference  confirms  the  Resolution  adopted 
by  the  Conference  of  1899  in  regard  to  the  limitation  of  military 
expenditure;  and  inasmuch  as  military  expenditure  has  consider- 
ably increased  in  almost  every  country  since  that  time,  the  Confer- 
ence declares  that  it  is  eminently  desirable  that  the  Governments 
should  resume  the  serious  examination  of  this  question." 

It  has  besides  expressed  the  following  opinions: 

1.  The  Conference  calls  the  attention  of  the  Signatory  Powers 

to  the  advisability  of  adopting  the  annexed  draft  Con- 
vention for  the  creation  of  a  Judicial  Arbitration  Court, 
and  of  bringing  it  into  force  as  soon  as  an  agreement  has 
been  reached  respecting  the  selection  of  the  Judges  and 
the  constitution  of  the  Court. 

2.  The  Conference  expresses  the  opinion  that,  in  case  of  war, 

the  responsible  authorities,  civil  as  well  as  military,  should 
make  it  their  special  duty  to  ensure  and  safeguard  the 
maintenance  of  pacific  relations,  more  especially  of  the 
commercial  and  industrial  relations  between  the  Inhab- 
itants of  the  belligerent  States  and  neutral  countries. 

3.  The    Conference    expresses    the    opinion    that    the    Powers 

should  regulate,  by  special  Treaties,  the  position  as  re- 
gards military  charges,  of  foreigners  residing  within  their 
territories. 


518  APPENDIX   IV. 

4.  The  Conference  expresses  the  opinion  that  the  preparation 
of  regulations  relative  to  the  laws  and  customs  of  naval 
war  should  figure  in  the  programme  of  the  next  Confer- 
ence, and  that  in  any  case  the  Powers  may  apply,  as  far  as 
possihle,  to  war  by  sea  the  principles  of  the  Convention 
Relative  to  the  Laws  and  Customs  of  War  on  Land. 

Finally,  the  Conference  recommends  to  the  Powers  the  assembly 
of  a  Third  Peace  Conference,  which  might  be  held  within  a  period 
corresponding  to  that  which  has  elapsed  since  the  preceding  Con- 
ference, at  a  date  to  be  fixed  by  common  agreement  between  the 
Powers,  and  it  calls  their  attention  to  the  necessity  of  preparing 
the  programme  of  this  Third  Conference  a  sufficient  time  in  ad- 
vance to  ensure  its  deliberations  being  conducted  w'ith  the  necessary 
authority  and  expedition. 

In  order  to  attain  this  object  the  Conference  considers  that  it 
would  be  very  desirable  that,  some  two  years  before  the  probable 
date  of  the  meeting,  a  preparatory  Committee  should  be  charged 
by  the  Governments  with  the  task  of  collecting  the  various  pro- 
posals to  be  submitted  to  the  Conference,  of  ascertaining  w-hut  sub- 
jects are  ripe  for  embodiment  in  an  International  Regulation,  and 
of  preparing  a  programme  which  the  Governments  should  decide 
upon  in  sufficient  time  to  enable  it  to  be  carefully  examined  by  the 
countries  interested.  The  Committee  should  further  be  intrusted 
with  the  task  of  proposing  a  system  of  organization  and  procedure 
for  the  Conference  itself. 

In  faith  whereof  the  Plenipotentiaries  have  signed  the  present 
Act  and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  the  18th  October,  1907,  in  a  single  copy, 
which  shall  remain  deposited  in  the  archives  of  the  Netherland  (jov- 
ernment,  and  duly  certified  copies  of  which  shall  be  sent  to  all  the 
Powers  represented  at  the  Conference. 


HAGUE   CONVENTIONS.  519 


CONVENTION   FOR  THE  PACIFIC   SETTLEMENT 
OF  INTERNATIONAL  DISPUTES. 


His  Majesty  the  German  Emperor,  King  of  Prussia  ;  tlie  President 
of.  tlie  United  States  of  America  ;  tlie  President  of  the  Argentine  Re- 
public; His  Majesty  the  Emperor  of  Austria,  King  of  Bohemia,  etc., 
and  Apostolic  King  of  Hungary;  His  Majesty  the  King  of  the  Bel- 
gians ;  the  President  of  the  Republic  of  Bolivia ;  the  President  of  the 
Republic  of  the  United  States  of  Brazil ;  His  Royal  Highness  the 
Prince  of  Bulgaria;  the  President  of  the  Republic  of  Chile;  His  Maj- 
esty the  Emperor  of  China ;  the  President  of  the  Republic  of  Colom- 
bia ;  the  Provisional  Governor  of  the  Republic  of  Cuba ;  Flis  Majesty 
the  King  of  Denmark;  the  President  of  the  Dominican  Republic;  the 
President  of  the  Republic  of  Ecuador ;  His  Majesty  the  King  of 
Spain ;  the  President  of  the  French  Republic  ;  His  Majesty  the  King 
of  the  United  Kingdom  of  Great  Britain  and  Ireland  and  of  the 
British  Dominions  beyond  the  Seas,  Emperor  of  India;  His  Majesty 
the  King  of  the  Hellenes ;  the  President  of  the  Republic  of  Guate- 
mala ;  the  President  of  the  Republic  of  Haiti ;  His  Majesty  the  King 
of  Italy;  His  Majesty  the  Emperor  of  Japan;  His  Royal  Highness 
the  Grand  Duke  of  Luxemburg,  Duke  of  Nassau ;  the  President  of 
the  United  States  of  Mexico ;  His  Royal  Highness  the  Prince  of 
Montenegro;  the  President  of  the  Republic  of  Nicaragua;  His  Maj- 
esty the  King  of  Norway ;  the  President  of  the  Republic  of  Panama ; 
the  President  of  the  Republic  of  Paraguay;  Her  ^Majesty  the  Queen 
of  the  Netherlands ;  the  President  of  the  Republic  of  Peru ;  His  Im- 
perial Majesty  the  Shah  of  Persia ;  His  Majesty  the  King  of  Portugal 
and  of  the  Algarves,  etc.;  His  Majesty  the  King  of  Roumania ;  His 
Majesty  the  Emperor  of  All  the  Russias ;  the  President  of  the  Repub- 
lic of  Salvador ;  His  Majesty  the  King  of  Servla  ;  His  Majesty  the 
King  of  Slam;  His  Majesty  the  King  of  Sweden;  the  Swiss  Fed- 
eral Council ;  His  Majesty  the  Emperor  of  the  Ottomans ;  the  Presi- 
dent of  the  Oriental  Republic  of  Uruguay ;  the  President  of  the 
United  States  of  Venezuela — 

Animated  by  the  sincere  desire  to  work  for  the  maintenance  of  the 
general  peace; 

Resolved  to  promote  by  all  the  efforts  in  their  power  the  friendly 
settlement  of  intei'national  disputes ; 

Recognizing  the  solidarity  which  unites  the  members  of  the  society 
of  civilized  nations ; 

Desirous  of  extending  the  empire  of  law,  and  of  strengthening  the 
appreciation  of  international  justice ; 

Convinced  that  the  permanent  institution  of  a  Tribunal  of  Arbitra- 


520  APPENDIX    IV. 

tioD,  accessible  to  all,  in  the  midst  of  the  independent  Powers,  will 
contribute  effectively  to  this  result; 

Having  regard  to  the  advantages  attending  the  general  and  regular 
organization  of  the  procedure  of  arbitration  ; 

Sharing  the  opinion  of  the  august  Initiator  of  the  International 
Peace  Conference  that  it  is  expedient  to  record  in  an  international 
Agreement  the  principles  of  equity  and  right  on  which  are  based  the 
security  of  States  and  the  welfare  of  peoples; 

Being  desirous,  with  this  object,  of  insuring  the  better  working 
in  practice  of  Commissions  of  Inquiry  and  Tribunals  of  Arbitration, 
and  of  facilitating  recourse  to  arbitration  in  cases  which  allow  of  a 
summary  procedure; 

Have  deemed  it  necessary  to  revise  in  certain  particulars  and  to 
complete  the  work  of  the  First  Peace  Conference  for  the  pacific  settle- 
ment of  international  disputes. 

The  High  Contracting  Parties  have  resolved  to  conclude  a  new 
Convention  for  this  purpose,  and  have  appointed  the  following  as 
their  Plenipotentiaries: 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following: 


TITLE  I.— ON  THE  MAINTENANCE  OF  THE  GENERAL  PEACE. 

Article  1.  With  a  view  to  obviating,  as  far  as  possible,  recourse  to 
force  in  the  relations  between  States,  the  Contracting  Powers  agree 
to  use  their  best  efforts  to  insure  the  pacific  settlement  of  international 
differences. 


TITLE  II.— ON  GOOD  OFFICES  AND  MEDIATION. 

Art.  2.  In  case  of  serious  disagreement  or  dispute,  before  an  ap- 
peal to  arms,  the  Contracting  Powers  agree  to  have  recourse,  as  far 
as  circumstances  allow,  to  the  good  offices  or  mediation  of  one  or  more 
friendly  Powers. 

Art.  3.  Independently  of  this  recourse,  the  Contracting  Powers 
recommend  that  one  or  more  Powers,  strangers  to  the  dispute,  should, 
on  their  own  initiative,  and  as  far  as  circumstances  may  allow,  offer 
their  good  offices  or  mediation  to  the  States  at  variance. 

Powers,  strangers  to  the  dispute,  have  the  right  to  offer  good  offices 
or  mediation,  even  during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  one  or  the  other 
of  the  parties  in  conflict  as  an  unfriendly  act. 

Art.  4.  The  part  of  the  mediator  consists  in  reconciling  the  op- 
posing claims  and  appeasing  the  feelings  of  resentment  which  may 
have  arisen  between  the  States  at  variance. 


HAGUE   CONVENTIONS.  521 

Art.  5.  The  functions  of  the  mediator  are  at  an  end  when  once 
it  is  declared,  either  by  one  of  the  parties  to  the  dispute,  or  by  the 
mediator  himself,  that  the  means  of  reconciliation  proposed  by  him 
are  not  accepted. 

Art.  6.  Good  offices  and  mediation,  either  at  the  request  of  the 
parties  at  variance,  or  on  the  initiative  of  Powers  strangers  to  the 
dispute,  have  exclusively  the  character  of  advice  and  never  having 
binding  force. 

Art.  7.  The  acceptance  of  mediation  cannot,  unless  there  be  an 
agreement  to  the  contrary,  have  the  effect  of  interrupting,  delaying, 
or  hindering  mobilization  or  other  measures  of  preparation  for  v^^ar. 

If  mediation  occurs  after  the  commencement  of  hostilities,  it  causes 
no  interruption  to  the  military  operations  in  progress,  unless  there  be 
an  agreement  to  the  contrary. 

Art.  8.  The  Contracting  Powers  are  agreed  in  recommending  the 
application,  when  circumstances  allow,  of  special  mediation  in  the 
following  form: 

In  case  of  a  serious  difference  endangering  the  peace,  the  States  at 
variance  choose  respectively  a  Power,  to  whom  they  intrust  the  mis- 
sion of  entering  into  direct  communication  with  the  Power  chosen  on 
the  other  side,  with  the  object  of  preventing  the  rupture  of  pacific 
relations. 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise 
stipulated,  cannot  exceed  thirty  days,  the  States  in  conflict  cease  from 
all  direct  communication  on  the  subject  of  the  dispute,  which  is  re- 
garded as  referred  exclusively  to  the  mediating  Powers,  who  must 
use  their  best  efforts  to  settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are 
charged  with  the  joint  task  of  taking  advantage  of  any  opportunity 
to  restore  peace. 

TITLE  III.— ON  INTERNATIONAL  COMMISSIONS  OF  INQUIRY. 

Art.  9.  In  differences  of  an  international  nature  involving  neither 
honor  nor  vital  interests,  and  arising  from  a  difference  of  opinion  on 
points  of  fact,  the  Contracting  Powers  deem  it  expedient  and  desirable 
that  the  parties,  who  have  not  been  able  to  come  to  an  agreement  by 
means  of  diplomacy,  should  as  far  as  circumstances  allow,  institute 
an  International  Commission  of  Inquiry,  to  facilitate  a  solution  of 
these  differences  by  elucidating  the  facts  by  means  of  an  impartial 
and  conscientious  investigation. 

Art.  10.  The  International  Commissions  of  Inquiry  are  constituted 
by  special  agreement  between  the  parties  in  conflict. 

The  Convention  for  an  inquiry  defines  the  facts  to  be  examined ; 
it  determines  the  mode  and  time  in  which  the  Commission  is  to  be 
formed  and  the  extent  of  the  Commissioners'  powers. 

It  also  determines,  if  there  is  need,  where  the  Commission  is  to  sit ; 
and  whether  it  may  remove  to  another  place,  the  language  the  Com- 


522  APPENDIX    IV. 

mission  shall  use  and  the  languages  the  use  of  which  shall  be  au- 
thorized before  it.  as  well  as  the  date  on  which  each  party  must  de- 
posit its  statement  of  facts,  and,  generally  speaking,  all  the  condi- 
tions upon  which  the  parties  have  agreed. 

If  the  parties  consider  it  necessary  to  appoint  Assessors,  the  Con- 
vention of  Inquiry  shall  determine  the  mode  of  their  selection  and 
the  extent  of  their  powers. 

Art.  11.  If  the  Inquiry  Convention  has  not  determined  where  the 
Conunission  is  to  sit,  it  will  sit  at  The  Hague. 

The  place  of  meeting,  once  fixed,  cannot  be  altered  by  the  Com- 
mission except  with  the  assent  of  the  parties. 

If  the  Inquiry  Convention  has  not  determined  what  languages  are 
to  be  employed,  the  question  shall  be  decided  by  the  Conunission. 

Art.  12.  Unless  an  undertaking  is  made  to  the  contrary,  Commis- 
sions of  Inquiry  will  be  formed  in  the  manner  determined  by  Arti- 
cles 4.J  and  57  of  the  present  Convention. 

Art.  13.  Should  one  of  the  Commissioners  or  one  of  the  Assessors, 
should  there  be  any.  either  die,  or  resign,  or  be  unable  for  any  reason 
whatever  to  discharge  his  functions,  the  same  procedure  is  followed 
for  filling  the  vacancy  as  was  followed  for  appointing  him. 

Art.  14.  The  parties  are  entitled  to  appoint  special  agents  to  at- 
tend the  Commission  of  Inquiry,  whose  duty  it  is  to  represent  them 
and  to  act  as  intermediaries  between  them  and  the  Commission. 

They  are  further  authorized  to  engage  counsel  or  advocates,  ap- 
pointed by  themselves,  to  state  their  case  and  uphold  their  interests 
before  the  Commission. 

Art.  15.  The  International  Bureau  of  the  Permanent  Court  of 
Arbitration  acts  as  registry  for  the  Commissions  which  sit  at  The 
Hague,  and  it  shall  place  its  ottices  and  staff  at  the  disposal  of  the 
Contracting  Powers  for  the  rise  of  the  Commission  of  Inquiry. 

Art.  16.  If  the  Commission  meets  elsewhere  than  at  The  Hague, 
it  appoints  a  Secretary-General,  whose  office  serves  as  registry. 

It  is  the  function  of  the  registry,  under  the  control  of  the  President, 
to  make  the  necessary  arrangements  for  the  sittings  of  the  Commis- 
sion, the  preparation  of  the  Minutes,  and,  while  the  inquiry  lasts,  for 
the  charge  of  the  archives,  which  shall  subsequently  be  transferred  to 
the  International  Bureau  at  The  Hague. 

Art.  17.  In  order  to  facilitate  the  constitution  and  working  of 
Commissions  of  Inquiry,  the  Contracting  Powers  recommend  the 
following  rules,  which  shall  be  applicable  to  the  inquiry  procedure 
in  so  far  as  the  parties  do  not  adopt  other  rules. 

Art.  18.  The  Commission  shall  settle  the  details  of  the  procedure 
not  covered  by  the  special  Inquiry  Convention  or  the  present  Con- 
vention, and  shall  arrange  all  the  formalities  required  for  dealing 
with  the  evidence. 

Art.  19.  On  the  inquiry  both  sides  must  be  heard. 
At  the  dates  fixed,   each  party  communicates  to  the  Commission 
and  to  the  other  party  the  statements  of  facts,  if  any,  and,  in  all  cases, 


HAGUE   CONVENTIONS.  523 

the  Instruments,  papers,  and  documents  which  it  considers  useful 
for  ascertaining  the  truth,  as  well  as  the  list  of  witnesses  and  experts 
whose  evidence  it  wishes  to  be  heard. 

Art.  20.  The  Commission  is  entitled,  with  the  assent  of  the  Pow- 
ers, to  move  temporarily  to  any  place  where  it  considers  it  may  be 
useful  to  have  recourse  to  this  means  of  inquiry  or  to  send  one  or 
more  of  its  members.  Permission  must  be  obtained  from  the  State 
on  whose  territory  it  is  proposed  to  hold  the  inquiry. 

Art.  21.  Every  investigation,  and  every  examination  of  a  locality, 
must  be  made  in  the  presence  of  the  agents  and  counsel  of  tlie  parties 
or  after  they  have  been  duly  summoned. 

Art.  22.  The  Commission  is  entitled  to  ask  from  either  party  for 
such  explanations  and  information  as  it  considers  necessary. 

Art.  23.  The  parties  undertake  to  supply  the  Commission  of  In- 
quiry, as  fully  as  they  may  think  possible,  with  all  means  and  facili- 
ties necessary  to  enable  it  to  become  completely  acquainted  with,  and 
to  accurately  understand,  the  facts  in  question. 

They  undertake  to  make  use  of  the  means  at  their  disposal,  under 
their  municipal  law,  to  insure  the  appearance  of  the  witnesses  or  ex- 
perts who  are  in  their  territory  and  have  been  summoned  before  the 
Commission. 

If  the  witnesses  or  experts  are  unable  to  appear  before  the  Com- 
mission, the  parties  will  arrange  for  their  evidence  to  be  taken  before 
the  qualified  officials  of  their  own  country. 

Art.  24.  For  all  notices  to  be  served  by  the  Commission  in  the  ter- 
ritory of  a  third  Contracting  Power,  the  Commission  shall  apply 
direct  to  the  Government  of  the  said  Power.  The  same  rule  applies 
in  the  case  of  steps  being  taken  on  the  spot  to  procure  evidence. 

The  requests  for  this  purpose  are  to  be  executed  so  far  as  the 
means  at  the  disposal  of  the  Power  applied  to  under  its  municipal 
law  allow.  They  cannot  be  rejected  unless  the  Power  in  question 
considers  they  are  calculated  to  impair  its  sovereign  rights  or  its 
safety. 

The  Commission  will  equally  be  always  entitled  to  act  through  the 
Power  on  whose  territory  it  sits. 

Art.  25.  The  witnesses  and  experts  are  summoned  on  the  request 
of  the  parties  or  by  the  Commission  of  its  own  motion,  and,  in  every 
case,  through  the  Government  of  the  State  in  whose  territory  they 
are. 

The  witnesses  are  heard  in  succession  and  separately,  in  the  pres- 
ence of  the  agents  and  counsel,  and  in  the  order  fixed  by  the  Commis- 
sion. 

Art.  26.  The  examination  of  witnesses  is  conducted  by  the  Pres- 
ident. 

The  members  of  the  Commission  may  however  put  to  each  witness 
questions  which  they  consider  likely  to  throw  light  on  and  complete 
his  evidence,  or  get  information  on  any  point  concerning  the  witness 
within  the  limits  of  what  is  necessary  in  order  to  get  at  the  truth. 


624  APPENDIX   IV. 

The  agents  and  counsel  of  the  parties  may  not  interrupt  the  witness 
when  he  is  making  his  statements ;  nor  put  any  direct  question  to 
him,  but  they  may  ask  the  President  to  put  such  additional  questions 
to  the  witness  as  they  think  expedient. 

Art.  27.  The  witness  must  give  his  evidence  without  being  allowed 
to  read  any  written  draft.  He  may,  however,  be  permitted  by  the 
President  to  consult  notes  or  documents  if  the  nature  of  the  facts 
referred  to  necessitates  their  employment. 

Art.  lis.  A  Minute  of  the  evidence  of  the  witness  is  drawn  up  fortli- 
with  and  read  to  the  witness.  The  latter  may  make  such  alterations 
and  additions  as  he  thinks  necessary,  which  will  be  recorded  at  the 
end  of  his  statement. 

When  the  whole  of  his  statement  has  been  read  to  the  witness,  be 
is  asked  to  sign  it. 

Art.  29.  The  agents  are  authorized,  in  the  course  of  or  at  the  close 
of  the  inquiry,  to  present  in  writing  to  the  Commission  and  to  the 
other  party  such  statements,  requisitions,  or  summaries  of  the  facts 
as  they  consider  useful  for  ascertaining  the  truth. 

Art.  30.  The  Commission  considers  its  decisions  in  private  and 
the  proceedings  are  secret. 

All  questions  are  decided  by  a  majority  of  the  members  of  the  Com- 
mission. 

If  a  member  declines  to  vote,  the  fact  must  be  recorded  in  the 
Minutes. 

Art.  31.  The  sittings  of  the  Commission  are  not  public,  nor  the 
Minutes  and  documents  connected  with  the  inquiry  published  except 
in  virtue  of  a  decision  of  the  Commission  taken  with  the  consent  of 
the  parties. 

Art.  32.  After  the  parties  have  presented  all  the  explanations  and 
evidence,  and  the  witnesses  have  all  been  heard,  the  President  de- 
clares the  inquiry  terminated,  and  the  Commission  adjourns  to  delib- 
erate and  to  draw  up  its  Report. 

Art.  33.  The  Report  is  signed  by  all  the  members  of  the  Commis- 
sion. 

If  one  of  the  members  refuses  to  sign,  the  fact  is  mentioned ;  but 
the  validity  of  the  Report  is  not  affected. 

Art.  34.  The  Report  of  the  Commission  is  read  at  a  public  sitting, 
the  agents  and  counsel  ot  the  parties  being  present  or  duly  sum- 
moned. 

A  copy  of  the  Report  is  given  to  each  party. 

Art.  35.  The  Report  of  the  Commission  is  limited  to  a  statement 
of  facts,  and  has  in  no  way  the  character  of  an  Award.  It  leaves  to 
the  parties  entire  freedom  as  to  the  effect  to  be  given  to  the  statement. 

Art.  36.  Each  party  pays  its  own  expenses  and  an  equal  share  of 
the  expenses  incurred  by  the  Commission. 


HAGUE   CONVENTIONS.  525 


TITLE  IV.— ON  INTERNATIONAL  ARBITRATION. 
Chapteb  I. — On  the  System  of  Arbitration. 

Art.  37.  International  arbitration  has  for  its  object  the  settlement 
of  disputes  between  States  by  judges  of  their  own  choice,  and  on 
the  basis  of  respect  for  law. 

Recourse  to  arbitration  implies  an  engagement  to  submit  in  good 
faith  to  the  Award. 

Art.  38.  In  questions  of  a  legal  nature,  and  especially  in  the  in- 
terpretation or  application  of  International  Conventions,  arbitration 
is  recognized  by  the  Contracting  Powers  as  the  most  effective,  and  at 
the  same  time  the  most  equitable,  means  of  settling  disputes  which 
diplomacy  has  failed  to  settle. 

Consequently,  it  would  be  desirable  that,  in  disputes  about  the 
above-mentioned  questions,  the  Contracting  Powers  should,  if  the 
case  arose,  have  recourse  to  arbitration,  in  so  far  as  circumstanoes 
permit. 

Art.  39.  The  Arbitration  Convention  is  concluded  for  questions 
already  existing  or  for  questions  which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 

Art.  40.  Independently  of  general  or  private  Treaties  expressly  stip- 
ulating recourse  to  arbitration  as  obligatoi-y  on  the  Contracting 
Powers,  the  said  Powers  reserve  to  themselves  the  right  of  conclud- 
ing new  Agreements,  general  or  private,  with  a  view  to  extending 
obligatory  arbitration  to  all  cases  which  they  may  consider  it  pos- 
sible to  submit  to  it. 


Chapter  II. — On  the  Permanent  Court  of  Arbitration. 

Art.  41.  With  the  object  of  facilitating  an  immediate  recourse  to 
arbitration  for  international  differences,  which  it  has  not  been  pos- 
sible to  settle  by  diplomacy,  the  Contracting  Powers  undertake  to 
maintain  the  permanent  Court  of  Arbitration,  established  by  the  First 
Peace  Conference  accessible  at  all  times  and  operating,  unless  other- 
wise stipulated  by  the  parties,  in  accordance  with  the  Rules  of  Pro- 
cedure inserted  in  the  present  Convention. 

Art.  42.  The  Permanent  Court  shall  be  competent  for  all  arbitra- 
tion cases,  unless  the  parties  agree  to  institute  a  special  Tribunal. 

Art.  43.  The  Permanent  Court  sits  at  The  Hague.  An  International 
Bureau  serves  as  registry  for  the  Court. 

This  Bureau  is  the  channel  for  communications  relative  to  the  meet- 
ings of  the  Court. 

It  has  the  custody  of  the  archives  and  conducts  all  the  administra- 
tive business. 

The  Contracting  Powers  undertake  to  communicate  to  the  Bureau 
as  soon  as  possible  a  certified  copy  of  any  conditions  of  arbitration 


526  APPKXDIX    IV. 

ai'rivod  at  between  them,  and  of  any  award  concerning  them  delivered 
by  a  special  Tribunal. 

They  undertake  likewise  to  comnuuiieate  to  the  Bureau  the  Laws. 
Regulations,  and  documents  eventually  showing  the  execution  of  the 
awards  given  by  the  Court. 

Art.  44.  Each  Singatory  Power  shall  select  four  persons  at  the 
most,  of  known  competency  in  questions  of  international  law,  of  the 
highest  moral  reputation,  and  disposed  to  accept  the  duties  of  Arbi- 
trators. 

The  persons  thus  selected  shall  be  inscribed,  as  members  of  the 
Court,  in  a  list  which  shall  be  notified  by  the  Bureau  to  all  the  Con- 
tracting Powers. 

Any  alteration  in  the  list  of  Arbitrators  is  brought  by  the  Bureau 
to  the  knowledge  of  the  Contracting  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one 
or  more  Members. 

The  same  person  can  be  selected  by  different  Powers. 

The  Members  of  the  Court  are  api)ointed  for  a  term  of  six  year.s. 
Their  appointments  can  be  renewable. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his 
place  shall  be  filled  in  accordance  with  the  method  of  his  appoint- 
ment. In  this  case  the  appointment  is  made  for  a  fresh  period  of 
six  years. 

Art.  45.  When  the  Contracting  Powers  desire  to  have  recourse  to 
the  Permanent  Court  for  the  settlement  of  a  difference  that  has 
arisen  between  them,  the  Arbitrators  called  upon  to  form  the  Tri- 
bunal with  jurisdiction  to  decide  this  difference,  must  be  chosen  from 
the  general  list  of  members  of  the  Court. 

Failing  the  direct  agreement  of  the  parties  on  the  composition  of 
the  Arbitration  Tribunal,  the  following  course  shall  be  pursued: 

Each  party  appoints  two  Arbitrators,  of  whom  one  only  can  be  its 
national  or  chosen  from  among  the  persons  selected  by  it  as  members 
of  the  Permanent  Court.  These  Arbitrators  together  choose  an  Um- 
pire. 

If  the  votes  are  equally  divided,  the  choice  of  the  Umpire  is  in- 
trusted to  a  third  Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects 
a  different  Power,  and  the  choice  of  the  Umpire  is  made  in  concert 
by  the  Powers  thus  selected. 

If,  within  two  months'  time,  these  two  Powers  cannot  come  to  an 
agreement,  each  of  them  presents  two  candidates  taken  from  the  list 
of  members  of  the  Permanent  Coiirt,  exclusive  of  the  members  selected 
by  the  parties  and  not  being  nationals  of  either  of  them.  Drawing 
lots  determines  which  of  the  candidates  thus  presented  shall  be  Um- 
pire. 

Art.  4G.  The  Tribunal  being  thus  composed,  the  parties  notify  to 
the  Bureau  their  determination  to  have  recourse  to  the  Court  the 
text  of  their  "Compromis"  and  the  names  of  the  Arbitrators. 


HAGUE   CONVENTIONS.  527 

The  Bureau  communicates  without  delay  to  each  Arbitrator  the 
"Compromis,"  and  the  names  of  the  other  members  of  the  Tribunal. 

The  Tribunal  of  Arbitration  assembles  on  the  date  fixed  by  the  par- 
ties.   The  Bureau  makes  the  necessary  arrangements  for  the  meeting. 

The  Members  of  the  Court,  in  the  discharge  of  their  duties  and  out 
of  their  own  country,  enjoy  diplomatic  privileges  and  immunities. 

Art.  47.  The  Bureau  is  authorized  to  place  its  offices  and  staff  at 
the  disposal  of  the  Contracting  Powers  for  the  use  of  any  special 
Board  of  Arbitration. 

.  The  jurisdiction  of  the  Permanent  Court  may,  within  the  conditions 
laid  down  in  the  Regulations,  be  extended  to  disputes  between  non- 
Contracting  Powers,  or  between  Contracting  Powers  and  non-Con- 
tracting Powers,  if  the  Parties  are  agreed  on  recourse  to  this  Tri- 
bunal. 

Art.  48.  The  Contracting  Powers  consider  it  their  duty,  if  a  seri- 
ous dispute  threatens  to  break  out  between  two  or  more  of  them,  to 
remind  these  latter  that  the  Permanent  Court  is  open  to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the  parties 
at  variance  of  the  provisions  of  the  present  Convention,  and  the  ad- 
vice given  to  them,  in  the  highest  interests  of  peace,  to  have  recourse 
to  the  Permanent  Court,  can  only  be  regarded  as  friendly  actions. 

In  case  of  dispute  between  two  Powers,  one  of  them  can  always 
address  to  the  International  Bureau  a  note  containing  a  declaration 
that  it  would  be  ready  to  submit  the  dispute  to  arbitration. 

The  Bureau  must  at  once  inform  the  other  Power  of  the  declara- 
tion. 

Art.  49.  The  Permanent  Administrative  Council,  composed  of  the 
Diplomatic  Representatives  of  the  Contracting  Powers  accredited 
to  The  Hague  and  of  the  Netherland  Minister  for  Foreign  AfCairs, 
who  will  act  as  President. 

The  Council  settles  its  Rules  of  Procedure  and  all  other  necessary 
Regulations. 

It  decides  all  questions  of  administration  which  may  arise  with  re- 
gard to  the  operations  of  the  Court. 

It  has  entire  control  over  the  appointment,  suspension  or  dismissal 
of  the  officials  and  employes  of  the  Bureau. 

It  fixes  the  payments  and  salaries,  and  controls  the  general  expendi- 
ture. 

At  meetings  duly  summoned  the  presence  of  nine  members  is  suf- 
ficient to  render  valid  the  discussions  of  the  Council.  The  decisions 
are  taken  by  a  majority  of  votes. 

The  Council  communicates  to  the  Contracting  Powers  without  de- 
lay the  Regulations  adopted  by  it.  It  furnishes  them  with  an  annual 
Report  on  the  labors  of  the  Court,  the  working  of  the  administration, 
and  the  expenses.  The  Report  likewise  contains  a  resume  of  what  is 
important  in  the  documents  communicated  to  the  Bureau  by  the 
Powers  in  virtue  of  Article  43,  paragraphs  3  and  4. 

Art.  50.  The  expenses  of  the  Bureau  shall  be  borne  by  the  Con- 


528  APPENDIX   IV. 

tracting  Powers  in  the  proportion  fixed  for  the  International  Bureau 
of  the  Universal  Postal  Union. 

The  expenses  to  be  charged  to  the  adhering  Powers  shall  be  reck- 
oned from  the  date  on  which  their  adhesion  comes  into  force. 

Chapter  III. — On  Arbitral  Procedure. 

Art.  51.  With  a  view  to  encourage  the  development  of  arbitration, 
the  Contracting  Powers  have  agreed  on  the  following  Rules  which 
shall  be  applicable  to  arbitral  procedure,  unless  other  rules  have  been 
agreed  on  by  the  parties. 

Art.  52.  The  Powers  which  have  recourse  to  arbitration  sign  a 
special  Act  ("Compromis"),  in  which  the  subject  of  the  dispute  Is 
clearly  defined,  the  time  allowed  for  appointing  Arbitrators,  the 
form,  order,  and  time  in  which  the  communication  referred  to  in  Ar- 
ticle 63  must  be  made,  and  the  amount  of  the  sum  which  each  party 
must  deposit  in  advance  to  defray  the  expenses. 

The  "Compromis"  likewise  defines,  if  there  is  occasion,  the  manner 
of  appointing  Arbitrators,  any  special  powers  which  may  eventually 
l)flong  to  the  Tribunal,  where  it  shall  meet,  the  language  it  shall  use, 
and  the  languages  the  employment  of  which  shall  be  authorized  before 
it,  and,  generally  speaking,  all  the  conditions  on  which  the  parties  are 
agreed. 

Art.  53.  The  Permanent  Court  is  competent  to  settle  the  "Com- 
[)romis,"  if  the  parties  are  agreed  to  have  recourse  to  it  for  the  pur- 
pose. 

It  is  similarly  competent,  even  if  the  request  is  only  made  by  one 
of  the  parties,  when  all  attempts  to  reach  an  understanding  through 
the  diplomatic  channel  have  failed,  in  the  case  of: 

1.  A  dispute  covered  by  a  general  Treaty  of  Arbitration  concluded 
or  renewed  after  the  present  Convention  has  come  into  force,  and  pro- 
viding for  a  "Compromis"  in  all  disputes  and  not  either  explicitly  or 
implicitly  excluding  the  settlement  of  the  "Compromis"  from  the 
competence  of  the  Court.  Recourse  cannot,  however,  be  had  to  the 
Court  if  the  other  party  declares  that  in  its  opinion  the  dispute  does 
not  belong  to  the  category  of  disputes  which  can  be  submitted  to  com- 
pulsory arbitration,  imless  the  Treaty  of  Arbitration  confers  upon  the 
Arbitration  Tribunal  the  power  of  deciding  this  preliminary  question. 

2.  A  dispute  arising  from  contract  debts  claimed  from  one  Pow- 
er by  another  Power  as  due  to  its  nationals,  and  for  the  settlement 
of  which  the  offer  of  arbitration  has  been  accepted.  This  arrange- 
ment is  not  applicable  if  acceptance  is  subject  to  the  condition  that 
the  "Compromis"  should  be  settled  in  some  other  way. 

Art.  54.  In  the  cases   contemplated  in  the  preceding  Article,  the 
"Compromis"  shall   be  settled  by  a   Commission  consisting  of  five 
members  selected  in  the  manner  arranged  for  in  Article  45,  para 
graphs  3  to  6. 

The  fifth  member  is  President  of  the  Commission  ex  officio. 


HAGUE   CONVENTIONS.  529 

Art.  55.  The  dutiss  of  Arbitrator  may  be  conferred  on  one  Arbi- 
trator alone  or  on  several  Arbitrators  selected  by  the  parties  as  they 
please,  or  chosen  by  them  from  the  members  of  the  Permanent 
Court  of  Arbitration  established  by  the  present  Convention. 

Failing  the  constitution  of  the  Tribunal  by  direct  agreement  be- 
tween the  parties,  the  course  referred  to  in  Article  45,  paragraphs 
3  to  6,  is  followed. 

Art.  5G.  When  a  Sovereign  or  the  Chief  of  a  State  is  chosen  as 
Arbitrator,  the  arbitral  procedure  is  settled  by  him. 

Art.  57.  The  Umpire  is  President  of  the  Tribunal  ex  officio. 

When  the  Tribunal  does  not  include  an  Umpire,  it  appoints  its 
own  President 

Art.  58.  When  the  "Compromis"  is  settled  by  a  Commission,  as 
contemplated  in  Article  54,  and  in  the  absence  of  an  agreement  to 
the  contrary,  the  Commission  itself  shall  form  the  Arbitration  Tri- 
bunal. 

Art.  59.  In  case  of  the  death,  retirement,  or  disability  from  any 
cause  of  one  of  the  Arbitrators,  his  place  shall  be  filled  in  accord- 
ance with  the  method  of  his  appointment. 

Art.  60.  The  Tribunal  sits  at  The  Hague,  unless  some  other  place 
is  selected  by  the  parties. 

The  Tribunal  can  only  sit  in  the  territory  of  a  third  Power  with 
the  latter's  consent. 

The  place  of  meeting  once  fixed  cannot  be  altered  by  the  Tribunal, 
except  with  the  consent  of  the  parties. 

Art.  61.  If  the  question  as  to  what  languages  are  to  be  used  has 
not  been  settled  by  the  "Compromis,"  it  shall  be  decided  by  the 
Tribunal. 

Art.  62.  The  parties  are  entitled  to  appoint  special  agents  to  at- 
tend the  Tribunal,  for  the  purpose  of  serving  as  intermediaries  be- 
tween themselves  and  the  Tribunal. 

They  are  further  authorized  to  retain,  for  the  defense  of  their 
rights  and  interests  before  the  Tribunal,  counsel  or  advocates  ap- 
pointed by  them  for  this  purpose. 

The  members  of  the  Permanent  Court  may  not  act  as  agents,  coun- 
sel, or  advocates  except  on  behalf  of  the  Power  which  appointed 
them  members  of  the  Court. 

Art.  63.  As  a  general  rule  the  arbitral  procedure  comprises  two 
distinct  phases:    Pleadings  and  oral  discussions. 

The  pleadings  consist  in  the  communication  by  the  respective 
agents  to  the  members  of  the  Tribunal  and  the  opposite  party  of 
cases,  counter-cases,  and,  if  necessary,  of  replies;  the  parties  an- 
nex thereto  all  papers  and  documents  called  for  in  the  case.  This 
communication  shall  be  made  either  directly  or  through  the  inter- 
mediary of  the  International  Bureau,  in  the  order  and  within  the 
time  fixed  by  the  "Compromis." 

WiLS.lNT.L.— 34 


530  APPENDIX   IV. 

The  time  fixed  by  the  "Couipromis"  may  be  extended  by  mutual 
agreement  by  the  parties,  or  by  the  Tribunal  when  the  latter  con- 
sidei's  it  necessary  for  the  purpose  of  reachhig  a  just  decision. 

Discussion  consists  in  the  oral  development  before  the  Tribunal 
of  the  arguments  of  the  parties. 

Art.  G4.  A  certified  copy  of  every  document  produced  by  one  party 
must  be  communicated  to  the  other  party. 

Art.  65.  Unless  special  circumstances  arise,  the  Tribunal  does  not 
meet  until  the  pleadings  are  closed. 

Art.  66.  The  discussions  are  under  the  control  of  the  President. 

They  are  only  public  if  it  be  so  decided  by  the  Tribunal,  with  the 
assent  of  the  parties. 

They  are  recorded  in  minutes  drawn  up  by  the  Secretaries  ap- 
pointed by  the  President.  These  minutes  are  signed  by  the  Presi- 
dent and  by  one  of  the  Secretaries  and  alone  have  an  authentic 
character. 

Art.  67.  After  the  close  of  the  pleadings,  the  Tribunal  has  the 
right  to  refuse  discussion  of  all  new  papers  or  documents  which  one 
party  may  desire  to  submit  to  it  without  the  consent  of  the  other 
party. 

Art.  68.  The  Tribunal  is  free  to  take  into  consideration  new  pa- 
pers or  documents  to  which  its  attention  may  be  drawn  by  the 
agents  or  counsel  of  the  parties. 

In  this  case,  the  Tribunal  has  the  right  to  require  the  production 
of  these  Acts  or  documents,  but  is  obliged  to  make  them  known  to 
the  opposite  party. 

Art.  69.  The  Tribunal  can,  besides,  require  from  the  agents  of  the 
parties  the  production  of  all  papers,  and  can  demand  all  necessary 
explanations.     In  case  of  refusal,  the  Tribunal  takes  note  of  it. 

Art.  70.  The  agents  and  the  counsel  of  the  parties  are  authorized 
to  present  orally  to  the  Ti-ibunal  all  the  arguments  they  may  think 
expedient  in  defense  of  their  case. 

Art.  71.  They  are  entitled  to  raise  objections  and  points.  The  de- 
cisions of  the  Tribunal  on  those  points  are  final,  and  cannot  form 
the  subject  of  any  subsequent  discussion. 

Art.  72.  The  members  of  the  Tribunal  are  entitled  to  put  questions 
to  the  agents  and  counsel  of  the  parties,  and  to  demand  explanations 
from  them  on  doubtful  points. 

Neither  the  questions  put  nor  the  remarks  made  by  members  of 
the  Tribunal  during  the  discussions  can  be  regarded  as  an  expres- 
sion of  opinion  by  the  Tribunal  in  general,  or  by  its  members  in 
particular. 

Art.  73.  The  Tribunal  is  authorized  to  declare  its  competence  In 
interpreting  the  "Compromis"  as  well  as  the  other  acts  and  docu- 
ments which  may  be  invoked  in  the  case,  and  in  applying  the  princi- 
ples of  law. 

Art.  74.  The  Tribunal  is  entitled  to  issue  Rules  of  Procedure  for 
the  conduct  of  the  case  to  decide  the  forms,  order  and  time  in  which 


HAGUE   CONVENTIONS.  531 

each  party  must  conclude  its  arguments,  and  to  arrange  all  the  for- 
malities required  for  dealing  with  the  evidence. 

Art.  77.  When  the  agents  and  counsel  of  the  parties  have  sub- 
mitted all  explanations  and  evidence  in  support  of  their  case,  the 
President  pronounces  the  discussion  closed. 

Art.  78.  The  deliberations  of  the  Tribunal  take  place  in  private 
and  the  proceedings  remain  secret.  Every  decision  is  taken  by  a 
majority  of  members  of  the  Tribunal. 

Art.  79.  The  award,  given  by  a  majority  of  votes,  is  accompanied 
by  a  statement  of  reasons.  It  contains  the  names  of  the  Arbitrators; 
it  is  signed  by  the  President  and  Registrar  or  by  the  Secretary  act- 
ing as  Registrar. 

Art.  SO.  The  award  is  read  out  at  a  public  meeting  of  the  Tri- 
bunal, the  agents  and  counsel  of  the  parties  being  present,  or  duly 
summoned  to  attend. 

Art.  81.  The  award,  duly  pronounced  and  notified  to  the  agents 
of  the  parties,  puts  an  end  to  the  dispute  definitely  and  without  ap- 
peal. 

Art.  82.  Any  dispute  arising  between  the  parties  as  to  the  inter- 
pretation and  execution  of  the  Award  shall,  in  the  absence  of  an 
Agreement  to  the  contrary,  be  submitted  to  the  Tribunal  which  pro- 
nounced it. 

Art.  83.  The  parties  can  reserve  in  the  "Compromis"  the  right 
to  demand  the  revision  of  the  award. 

In  this  case,  and  unless  there  be  an  agreement  to  the  contrary, 
the  demand  must  be  addressed  to  the  Tribunal  which  pronounced 
the  award.  It  can  only  be  made  on  the  ground  of  the  discovery  of 
some  new  fact  calculated  to  exercise  a  decisive  influence  on  the 
award,  and  which,  at  the  time  the  discussion  was  closed,  was  un- 
known to  the  Tribunal  and  to  the  party  demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of 
the  Tribunal  expressly  recording  the  existence  of  the  new  fact,  rec- 
ognizing in  it  the  character  described  in  the  foregoing  paragraph, 
and  declaring  the  demand  admissible  on  this  ground. 

The  "Compromis"  fixes  the  period  within  which  the  demand  for 
revision  must  be  made. 

Art.  84.  The  award  is  not  binding  except  on  the  parties  in  dispute. 

When  there  is  a  question  of  interpreting  a  Convention  to  which 
Powers  other  than  those  concerned  in  the  dispute  are  parties,  they 
shall  inform  all  the  Signatory  Powers  in  good  time.  Each  of  these 
Powers  has  the  right  to  intervene  in  the  case.  If  one  or  more  of 
them  avail  themselves  of  this  right,  the  interpretation  contained  in 
the  award  is  equally  binding  on  them. 

Art.  85.  Each  party  pays  its  own  expenses  and  an  equal  share  of 
those  of  the  Tribunal. 


532  APPENDIX   IV. 


Chapter  IV. — Arbitration  by  Summary  Procedube. 

Art.  86.  With  a  view  to  facilitating  the  worliing  of  the  system  of 
arbitration  in  disputes  admitting  of  a  summary  procedure,  the  Con- 
tracting Powers  adopt  the  following  rules,  which  shall  be  observed 
in  the  absence  of  other  arrangements  and  subject  to  the  reservation 
that  the  provisions  of  Chapter  III  apply  so  far  as  may  be. 

Art.  87.  Each  of  the  parties  in  dispute  appoints  an  Arbitrator. 
The  two  Arbitrators  thus  selected  choose  an  Umpire.  If  they  do  not 
agree  on  this  point,  each  of  them  proposes  two  candidates  taken 
from  the  general  list  of  the  members  of  the  Permanent  Court  ex- 
clusive of  the  members  appointed  by  either  of  the  parties  and  not 
being  nationals  of  either  of  them;  Avhich  of  the  candidates  thus 
proposed  shall  be  the  Umpire  is  determined  by  lot. 

The  Umpire  presides  over  the  Tribunal,  which  gives  its  decisions 
by  a  majority  of  votes. 

Art.  88.  In  the  absence  of  any  previous  agreement  the  Tribunal, 
as  soon  as  it  is  formed,  settles  the  time  within  which  the  two  par- 
ties must  submit  their  respective  cases  to  it. 

Art.  89.  Each  party  is  represented  before  the  Tribunal  by  an 
agent,  who  serves  as  intermediary  between  the  Tribunal  and  the 
Government  who  appointed  him. 

Art.  90.  The  proceedings  are  conducted  exclusively  in  writing. 
Each  party,  however,  is  entitled  to  ask  that  witnesses  and  experts 
should  be  called.  The  Tribunal  has,  for  its  part,  the  right  to  de- 
mand oral  explanations  from  the  agents  of  the  two  parties,  as  well 
as  from  the  experts  and  witnesses  whose  appearance  in  Court  it 
may  consider  useful. 

General  Provisions. 

Art.  91.  The  present  Convention,  duly  ratified,  shall  replace,  as 
between  the  Contracting  Powers,  the  Convention  for  the  Pacific 
Settlement  of  International  Disputes  of  the  29th  July,  1899. 

Art.  92.  The  present  Convention  shall  be  ratified  as  speedily  as 
possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  proces- 
verbal  signed  by  the  Representatives  of  the  Powers  which  take  part 
therein  and  by  the  Netherland  Minister  for  Foreign  Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by  means 
of  a  written  notification,  addressed  to  the  Netherland  Government 
and  accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  proces-verbal  relative  to  the  first  de- 
posit of  ratifications,  of  the  notifications  mentioned  in  the  preceding 
paragraph,  and  of  the  instruments  of  ratification,  shall  be  immedi- 
ately sent  by  the  Netherland  Government,  through  the  diplomatic 


HAGUE   CONVENTIONS.  533 

channel,  to  the  Powers  invited  to  the  Second  Peace  Conference,  as 
well  as  to  those  Powers  which  have  adhered  to  the  Convention.  In 
the  cases  contemplated  in  the  preceding  paragraph,  the  said  Gov- 
ernment shall  at  the  same  time  inform  the  Powers  of  the  date  on 
which  it  received  the  notification. 

Art.  93.  The  non-Signatory  Powers  which  have  been  invited  to 
the  Second  Peace  Conference  may  adhere  to  the  present  Conven- 
tion. 

The  Power  which  desires  to  adhare  notifies  its  intention  in  writ- 
ing to  the  Netherland  Government,  forwarding  to  it  the  act  of  adhe- 
sion, which  shall  be  deposited  in  the  archives  of  the  said  Govern- 
ment. 

This  Government  shall  immediately  forward  to  all  the  other  Pow- 
ers invited  to  the  Second  Peace  Conference  a  duly  certified  copy  of 
the  notification  as  well  as  of  the  act  of  adhesion,  mentioning  the 
date  on  which  it  received  the  notification. 

Art.  94.  The  conditions  on  which  the  Powers  which  have  not  been 
invited  to  the  Second  Peace  Conference  may  adhere  to  the  present 
Convention  shall  form  the  subject  of  a  subsequent  Agreement  be- 
tween the  Contracting  Powers. 

Art.  95.  The  present  Convention  shall  take  effect,  In  the  case  of 
the  Powers  which  were  not  a  party  to  the  first  deposit  of  ratifica- 
tions, sixty  days  after  the  date  of  the  proces-verbal  of  this  deposit, 
and,  in  the  case  of  the  Powers  which  ratify  subsequently  or  which 
adhere,  sixty  days  after  the  notification  of  their  ratification  or  of 
their  adhesion  has  been  received  by  tlie  Netherland  Government. 

Art.  96.  In  the  event  of  one  of  the  Contracting  Parties  wishing 
to  denounce  the  present  Convention,  this  denunciation  would  not 
take  effect  until  a  year  after  its  notification  made  in  writing  to  the 
Netherlands  Government,  and  by  it  communicated  at  once  to  all  the 
other  Contracting  Powers. 

This  denunciation  shall  only  affect  the  notifying  Power. 

Art.  97.  A  register  kept  by  the  Netherland  Minister  for  Foreign 
Affairs  shall  give  the  date  of  the  deposit  of  ratifications  effected  in 
virtue  of  Article  92,  paragraphs  3  and  4,  as  well  as  the  date  on 
which  the  notifications  of  adhesion  (Article  93,  paragraph  2)  or  of 
denunciation  (Article  9G,  paragraph  1)  have  been  received. 

Each  Contracting  Power  is  entitled  to  have  access  to  this  register 
and  to  be  supplied  with  duly  certified  extracts  from  it. 

In  faith  whereof  the  Plenipotentiaries  have  appended  their  signa- 
tures to  the  present  Convention. 

Done  at  The  Hague,  the  18th  October,  1907,  in  a  single  copy, 
which  shall  remain  deposited  in  the  archives  of  the  Netherland 
Government,  and  duly  certified  copies  of  which  shall  be  sent, 
through  the  diplomatic  channel,  to  the  Contracting  Powers. 


534  APPENDIX   IV. 


Resolution  of  Ratification  of  the   Convention   for  the  Pacific  Settlement 
of   International   Disputes.    Signed   at  The  Hague,  1907. 

April  2,  1908. 

Resolved  (two-thirds  of  the  Senators  present  concurring  therein),  Tliat 
the  Senate  advise  and  consent  to  the  ratification  of  a  convention  signed 
by  the  delegates  of  the  United  States  to  the  Second  International  Peare 
Conference,  held  at  The  Hague  from  .Tune  sixteenth  to  October  eighteenth, 
nineteen  hundred  and  seven,  for  the  pacific  settlement  of  international  dis- 
putes, subject  to  the  declaration  made  by  the  delegates  of  the  United 
States  before  signing  said  convention,  namely: 

''Nothing  contained  in  this  convention  shall  be  so  construed  as  to  re- 
quire the  United  States  of  America  to  depart  from  its  ti-aditional  policy 
of  not  intruding  upon,  interfering  with,  or  entangling  itself  in  the  polit- 
ical questions  of  policy  or  internal  administration  ot:  any  foreign  state; 
nor  shall  anything  contained  in  the  said  ccnvention  be  construed  to  im- 
ply a  relinquishment  by  the  United  States  of  its  traditional  attitude  to- 
ward purely  American  questions." 

Resolved  further,  as  a  part  of  this  act  of  ratification.  That  the  United 
States  approves  this  convention  with  the  understanding  that  recourse  to 
the  permanent  court  for  the  settlement  of  diflf^rences  can  be  had  only  by 
agreement  thereto  through  general  or  special  treaties  of  arbitration  here- 
tofore or  hereafter  concluded  between  the  parties  in  dispute ;  and  the 
United  States  now  exercises  the  option  contained  in  article  fifty-three  of 
said  convention,  to  exclude  the  fonnulation  of  the  "compromis"  by  the 
permanent  court,  and  hereby  excludes  from  the  competence  of  the  per- 
manent court  the  power  to  frame  the  "compromis"'  required  by  general  or 
special  treaties  of  arbitration  concluded  or  hereafter  to  be  concluded  b.v 
the  United  States,  and  further  expressly  declares  that  the  "compromis" 
required  by  any  treaty  of  arbitration  to  which  the  United  States  may  be 
a  party  shall  be  settled  only  by  agreement  between  the  contracting  par- 
ties, unless  such  treaty  shall  expressly  provide  otherwise. 


HAGUE  CONVENTIONS.  535 


CONVENTION  RESPECTING  THE  LAWS  AND 
CUSTOMS  OF  WAR  ON  LAND. 


[Names  of  'States.] 

Considering  that,  while  seeking  means  to  preserve  peace  and  pre- 
vent armed  conflicts  between  nations,  it  is  likewise  necessary  to 
bear  in  mind  the  case  where  the  appeal  to  arms  has  been  brought 
about  by  events  which  their  care  was  unable  to  avert. 

Animated  by  the  desire  to  serve,  even  in  this  extreme  case, 
the  interests  of  humanity  and  the  ever  progressive  needs  of  civiliza- 
tion, 

Thinking  it  important,  with  this  object,  to  revise  the  general 
laws  and  customs  of  war,  either  with  a  view  to  defining  them  more 
precisely,  or  to  confining  them  within  such  limits  as  would  mitigate 
their  severity  as  far  as  possible. 

Have  deemed  it  necessary  to  complete  and  explain  in  certain  par- 
ticulars the  work  of  the  First  Peace  Conference,  which,  following  on 
the  Brussels  Conference  of  1874,  and  inspired  by  the  ideas  dictated 
by  a  wise  and  generous  forethought,  adopted  provisions  intended 
to  define  and  govern  the  usages  of  war  on  land. 

According  to  the  views  of  the  High  Contracting  Parties,  these  pro- 
visions, the  wording  of  which  has  been  inspired  by  the  desire  to 
diminish  the  evils  of  war  as  far  as  military  necessities  permit,  are 
intended  to  serve  as  a  general  rule  of  conduct  for  the  belligerents 
in  their  relations  with  each  other  and  with  the  inhabitants. 

It  has  not,  however,  been  found  possible  at  present  to  concert 
regulations  covering  all  the  circumstances  which  occur  in  practice. 

On  the  other  hand,  it  could  not  be  intended  by  the  High  Con- 
tracting Parties  that  the  unforeseen  cases  should,  in  the  absence  of 
a  written  undertaking,  be  left  to  the  arbitrary  judgment  of  military 
Commanders. 

Until  a  more  complete  code  of  the  laws  of  war  has  been  issued 
the  High  Contracting  Parties  deem  it  expedient  to  declare  that  in 
cases  not  included  in  the  Regulations  adopted  by  them,  the  inhabit- 
ants and  the  belligerents  remain  under  the  protection  and  the  rule 
of  the  principles  of  international  law,  as  they  result  from  the  usages 
established  among  civilized  peoples,  from  the  laws  of  humanity,  and 
the  dictates  of  the  public  conscience. 

They  declare  that  it  is  in  this  sense  especially  that  Articles  1  and 
2  of  the  Regulations  adopted  must  be  understood. 

The  High  Contracting  Parties,  desiring  to  conclude  a  fresh  Con- 
vention to  this  effect,  have  appointed  as  their  Plenipotentiaries,  to 
wit: 


536  APPENDIX   IV. 

[Names  of  Plenipotentiaries.] 

Wlio,  after  having  deposited  their  full  powers,  found  In  good  and 
due  form,  have  agreed  upon  the  following: 

Article  1.  The  Contracting  Parties  shall  issue  instructions  to  their 
armed  land  forces,  which  shall  be  in  conformity  with  the  Regula- 
tions Respecting  the  Laws  and  Customs  of  War  on  Laud,  annexed 
to  the  present  Convention. 

Art.  2.  The  provisions  contained  in  the  Regulations  referred  to  in 
Article  1,  as  well  as  in  the  present  Convention,  do  not  apply  except 
bet\A-een  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Art.  3.  A  belligerent  party  which  violates  the  provisions  of  the 
said  Regulations  shall,  if  the  case  demands,  be  liable  to  pay  com- 
pensation. It  shall  be  responsible  for  all  acts  committed  by  persons 
forming  part  of  its  armed  forces. 

Art.  4.  The  present  Convention  duly  ratified,  shall  as  between 
the  Contracting  Powers,  be  substituted  for  the  Convention  of  the 
29th  July,  1899,  Respecting  the  Laws  and  Customs  of  War  on  Land. 

The  Convention  of  1899  remains  in  force  as  between  the  Powers 
which  signed  it,  and  which  do  not  also  ratify  the  present  Conven- 
tion. 

Art.  5.  The  present  Convention  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  proc6s- 
verbal  signed  by  the  Representatives  of  the  Powers  which  take  part 
therein  and  by  the  Netherland  Minister  for  Foreign  Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by  means 
of  a  written  notification,  addressed  to  the  Netherland  Government 
and  accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  proces-verbal  relative  to  the  first  de- 
posit of  ratifications,  of  the  notifications  mentioned  in  the  preceding 
paragraph,  as  well  as  of  the  instruments  of  ratification,  shall  be 
immediately  sent  by  the  Netherland  Government,  through  the  diplo- 
matic channel,  to  the  Powers  invited  to  the  Second  Peace  Conference, 
as  well  as  to  the  other  Powers  which  have  adhered  to  the  Conven- 
tion. In  the  cases  contemplated  in  the  preceding  paragraph  the 
said  Government  shall  at  the  same  time  inform  them  of  the  date  on 
which  it  received  the  notification. 

Art.  6.  Non-Signatory  Powers  may  adhere  to  the  present  Conven- 
tion. 

The  Power  which  desires  to  adhere  notifies  in  writing  its  inten- 
tion to  the  Netherland  Government,  forwarding  to  it  the  act  of  ad- 
hesion, which  shall  be  deposited  in  the  archives  of  the  said  Gov- 
ernment. 

This  Government  shall  at  once  transmit  to  all  the  other  Powers 
a  duly  certified  copy  of  the  notification  as  well  as  of  the  act  of  ad- 
hesion, mentioning  the  date  on  which  it  received  the  notification. 


HAGUE   CONVENTIONS.  537 


Art.  7.  The  present  Convention  shall  come  into  force,  In  the  case 
of  the  Powers  which  were  a  party  to  the  first  deposit  of  ratifications 
sixty  days  after  the  date  of  the  procr'S-verbal  of  this  deposit,  and, 
in  the  case  of  the  Powers  which  ratify  subsequently  or  which  ad- 
here, sixty  days  after  the  notification  of  their  ratification  or  of  their 
adhesion  has  been  received  by  the  Netherland  Government. 

Art.  8.  In  the  event  of  one  of  the  Contracting  Parties  wishing  to 
denounce  the  present  Convention,  the  denunciation  shall  be  notified 
in  writing  to  the  Netherland  Government  w^hich  shall  at  once  com- 
municate a  duly  certified  copy  of  the  notification  to  all  the  other 
Powers,  informing  them  of  the  date  on  which  it  was  received. 

The  denunciation  shall  only  have  effect  in  regard  to  the  notifying 
Power,  and  one  year  after  the  notification  has  reached  the  Nether- 
land Government. 

Art.  9.  A  register  kept  by  the  Netherland  Ministry  for  Foreign  Af- 
fairs shall  give  the  date  of  the  deposit  of  ratifications  made  in  vir- 
tue of  Article  5,  paragraphs  3  and  4,  as  well  as  the  date  on  which 
the  notifications  of  adhesion  (Article  6,  paragraph  2)  or  of  denuncia- 
tion (Article  8,  paragraph  1)  were  received. 

Each  Contracting  Power  is  entitled  to  have  access  to  this  register 
and  to  be  supplied  with  duly  certified  extracts. 

In  faith  whereof  the  Plenipotentiaries  have  appended  their  signa- 
tures to  the  present  Convention. 

Done  at  The  Hague,  the  18th  October,  1907,  in  a  single  copy,  which 
shall  remain  deposited  in  the  archives  of  the  Netherland  Govern- 
ment, and  duly  certified  copies  of  which  shall  be  sent,  through  the 
diplomatic  channel,  to  the  Powers  which  have  been  invited  to  the 
Second  Peace  Conference. 


Annex  to  the  Conventiotst. 

Regulations  Respecting  the  Laivs  and  Customs  of  War  on 

Land. 


SECTION  I.— ON  BELLIGERENTS. 

OhA-PTeb  I. — On  the  Qualifications  of  Belligerents. 

Article  1.  The  laws,  rights,  and  duties  of  war  apply  not  only  to 
armies,  but  also  to  militia  and  volunteer  corps,  fulfilling  the  follow- 
ing conditions: 

1.  To  be  commanded  by  a  person  responsible  for  his  subordinates- 

2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a  distance 


538  APPENDIX   IV. 

3.  To  carry  arms  openly;    aud 

4.  To  conduct  their  operations  in  accordance  -with  the  laws  and 
customs  of  war. 

In  countries  where  militia  or  volunteer  corps  constitute  the  army, 
or  form  part  of  it,  they  are  included  under  the  denomination  "army." 

Art.  2.  The  population  of  a  territory  which  has  not  been  occupied 
who,  on  the  enemy's  apin'oach,  spontaneously  take  up  arms  to  resist 
the  Invading  troops  without  having  had  time  to  organize  themselves 
in  accordance  with  Article  1,  shall  be  regarded  a  belligerent  if  they 
carry  arms  openly  and  if  they  respect  the  laws  and  customs  of  war. 

Art.  3.  The  armed  forces  of  the  belligerent  parties  may  consist  of 
combatants  and  noncombatants.  In  case  of  capture  by  the  enemy 
both  have  a  right  to  be  treated  as  prisoners  of  war. 

Ohaptep.  II. — On  Prisoners  of  Wab. 

Art.  4.  Prisoners  of  war  are  in  the  power  of  the  hostile  Govern- 
ment, but  not  in  that  of  the  individuals  or  coi-ps  who  captured  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  and  military  pa- 
pers, remain  their  property. 

Art.  5.  Prisoners  of  war  may  be  interned  in  a  town,  fortress, 
camp,  or  any  other  locality,  and  bound  not  to  go  beyond  certain 
fixed  limits;  but  they  cannot  be  confined  except  as  an  indispensable 
measure  of  safety  and  only  while  the  circumstances  which  necessi- 
tate the  measure  continue  to  exist. 

Art.  6.  The  State  may  utilize  the  labor  of  prisoners  of  war  ac- 
cording to  their  rank  and  aptitude,  oflicers  excepted.  Their  tasks 
shall  not  be  excessive,  and  shall  have  nothing  to  do  with  the  military 
operations. 

Prisoners  may  be  authorized  to  work  for  the  Public  Service,  for 
private  persons,  or  on  their  own  account. 

Work  done  for  the  State  shall  be  paid  for  according  to  the  rates 
in  force  for  soldiers  of  the  national  army  employed  on  similar  tasks, 
or,  if  there  are  none  in  force,  at  a  rate  according  to  the  work  ex- 
ecuted. 

When  the  work  is  for  other  branches  of  the  Public  Service  or  for 
private  persons,  the  conditions  shall  be  settled  in  agreement  with  the 
military  authorities. 

The  wages  of  the  prisoners  shall  go  towards  improving  their  posi- 
tion, and  the  balance  shall  be  paid  them  at  the  time  of  their  release, 
after  deducting  the  cost  of  their  maintenance. 

Art.  7.  The  Government  into  whose  hands  prisoners  of  war  have 
fallen  is  bound  to  maintain  them. 

Failing  a  special  agreement  between  the  belligerents,  prisoners  of 
war  shall  be  treated  as  regards  food,  quarters,  and  clothing,  on  the 
same  footing  as  the  troops  of  the  Government  which  has  captured 
them. 


HAGUE   CONVENTIONS.  539 

Art  8.  Prisoners  of  war  shall  be  sul)ject  to  the  laws,  regulations, 
and  orders  in  force  in  the  army  of  the  State  into  whose  hands  they 
have  fallen. 

Any  act  of  insubordination  warrants  the  adoption,  as  regards 
them,  of  such  measures  of  severity  as  may  be  necessary. 

I'^scaped  prisoners,  recaptured  before  they  have  succeeded  in  re- 
joining their  army  or  before  quitting  the  territory  occupied  by  the 
array  that  captured  them,  are  liable  to  disciplinary  punishment. 

Prisoners  who  after  succeeding  in  escaping  are  again  taken  prison- 
ers, are  not  liable  to  any  punishment  for  the  previous  flight. 

Art.  9.  Every  prisoner  of  war,  if  questioned,  is  bound  to  declare 
his  true  name  and  rank,  and  if  he  disregards  this  rule,  he  is  liable 
to  a  curtailment  of  the  advantages  accorded  to  the  prisoners  of  war 
of  his  class. 

Art.  10.  Prisoners  of  war  may  be  set  at  libertj^  on  parole  if  the 
laws  of  their  country  authorize  it,  and,  in  such  a  case,  they  are 
bound,  on  their  personal  honor,  scrupulously  to  fulfill,  both  as  re- 
gards their  own  Government  and  the  Government  by  whom  they 
were  made  prisoners,  the  engagements  they  have  contracted. 

In  such  cases,  their  own  Government  shall  not  require  of  nor  ac- 
cept from  them  any  seiwice  incompatible  Avith  the  parole  given. 

Art.  11.  A  prisoner  of  war  cannot  be  forced  to  accept  his  liberty 
on  parole;  similarly  the  hostile  Government  is  not  obliged  to  assent 
to  the  prisoner's  request  to  be  set  at  liberty  on  parole. 

Art.  12.  Any  prisoner  of  war,  who  is  liberated  on  parole  and  re- 
captured, bearing  ai'ms  against  the  Government  to  whom  he  had 
pledged  his  honor,  or  against  the  allies  of  that  Government,  forfeits 
his  right  to  be  treated  as  a  prisoner  of  war,  and  can  be  brought  be- 
fore the  Courts. 

Art.  13.  Individuals  who  follow  an  army  without  directly  belong- 
ing to  it,  such  as  newspaper  correspondents  and  reporters,  sutlers, 
contractors,  who  fall  into  the  enemy's  hands,  and  whom  the  latter 
think  fit  to  detain,  have  a  right  to  be  treated  as  prisoners  of  war, 
provided  they  can  produce  a  certificate  from  the  military  authori- 
ties of  the  army  they  were  accompanying. 

Art.  14.  A  Bureau  for  information  relative  to  prisoners  of  war 
is  instituted,  on  the  commencement  of  hostilities,  in  each  of  the  bel- 
ligerent States,  and  when  necessary,  in  the  neutral  countries  on 
whose  territory  belligerents  have  been  received.  This  Bureau  is  in- 
tended to  answer  all  inquires  about  prisoners  of  war,  and  is  fur- 
nished by  the  various  services  concerned  with  all  the  necessary  in- 
formation to  enable  it  to  keep  an  individual  return  for  each  prisoner 
of  war.  It  is  kept  informed  of  internments  and  changes,  releases  on 
parole,  exchanges,  as  well  as  of  admissions  into  hospitals  and  deaths. 
The  office  must  state  in  this  return  the  regimental  number,  name 
and  surname,  age,  place  of  origin,  rank  unit,  wounds,  date  and  place 
of  capture,  internment,  wounding  and  death,  as  well  as  any  ob- 
servations of  a  special  character.     The  individual  return  shall  be 


540  APPENDIX   IV. 

sent  to  the  Government  of  the  other  belligerent  after  the  conclu- 
sion of  peace. 

It  is  also  tiie  duty  of  the  Information  Bureau  to  receive  and  col- 
lect all  objects  of  personal  use,  valuables,  letters,  etc.,  found  on  the 
battlefields  or  left  by  prisoners  who  have  been  released  on  parole,  or 
exchanged;  or  who  have  escaped  or  died  in  hospital  or  ambulance, 
and  to  transmit  them  to  those  interested. 

Art.  15.  Relief  Societies  for  prisoners  of  war,  which  are  properly 
constituted  in  accordance  with  the  law  of  the  country  with  the  ob- 
ject of  serving  as  the  intermediary  for  charity,  shall  receive  from 
the  belligerents  for  themselves  and  their  duly  accredited  agents 
every  facility,  within  the  bounds  of  military  requirements  and  Ad- 
ministrative Regulations  for  the  effective  accomplishment  of  their 
humane  task.  Delegates  of  these  Societies^  may  be  admitted  to  the 
places  of  internment  for  the  distribution  of  relief,  as  also  to  the  halt- 
ing places  of  repatriated  prisoners,  if  furnished  with  a  personal  per- 
mit by  the  military  authorities,  ifad  on  giving  an  engagement  in 
writing  to  comply  with  all  their  Regulations  for  order  and  police. 

Art.  16.  The  Information  Bureau  shall  have  the  privilege  of  free 
postage.  Letters,  money  orders,  and  valuables,  as  well  as  postal 
parcels  destined  for  the  prisoners  of  war  or  dispatched  by  them, 
shall  be  free  of  all  postal  duties  both  in  the  countries  of  origin  and 
destination,  as  well  as  in  those  they  pass  through. 

Gifts  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted 
free  of  all  duties  of  entry  and  others,  as  well  as  of  payments  for 
carriage  by  the  State  railways. 

Art.  17.  Officers  taken  prisoners  shall  receive  the  same  rate  of  pay 
as  officers  of  corresponding  rank  in  the  country  where  they  are  de- 
tained, the  amount  to  be  ultimately  refunded  by  their  own  Govern- 
ment. 

Art.  18.  Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exer- 
cise of  their  religion,  including  attendance  at  their  own  church 
services,  provided  only  they  comply  with  the  regulations  for  order 
and  police  issued  by  the  military  authorities. 

Art.  19.  The  wills  of  prisoners  of  war  are  received  or  drawn  up 
on  the  same  conditions  as  for  soldiers  of  the  National  Army. 

The  same  rules  shall  be  observed  regarding  death  certificates,  as 
well  as  for  the  burial  of  prisoners  of  war,  due  regard  being  paid  to 
their  grade  and  rank. 

Art.  20.  After  the  conclusion  of  peace,  tfie  repatriation  of  prison- 
ers of  war  shall  take  place  as  speedily  as  possible. 

Chapter  III. — On  the  Sick  and  Wounded. 

Art  21.  The  obligations  of  belligerents  with  regard  to  the  sick 
and  wounded  are  governed  by  the  Geneva  Convention  of  the  22d 
August,  1S64,  subject  to  any  modifications  which  may  be  introduced 
into  it 


HAGUB   CONVENTIONS.  541 


SECTION  II.— ON  HOSTILITIES. 

Chapteb  I. — On  Means  of  Injuring  the  Enemy,  Sieges,  and  Bom- 
bardments. 

Art.  22.  The  right  of  belligerents  to  adopt  means  of  injuring  the 
enemy  is  not  unlimited. 

Art.  23.  Besides  the  prohibitions  provided  by  special  Conventions, 
it  is  especially  prohibited: 

(a)  To  employ  poison  or  poisoned  arms; 

(b)  To  kill  or  wound  treacherously  individuals  belonging  to  the 
hostile  nation  or  army; 

(c)  To  kill  or  wound  an  enemy  w^ho,  having  laid  down  arms,  or 
having  no  longer  means  of  defense,  has  surrendered  at  discretion; 

(d)  To  declare  that  no  quarter  will  be  given; 

(e)  To  employ  arms,  projectiles,  or  material  of  a  nature  to  cause 
superflous  injury; 

(f)  To  make  improper  use  of  a  flag  of  truce,  the  national  flag,  or 
military  ensigns  and  the  enemy's  uniform,  as  well  as  the  distinctive 
badges  of  the  Geneva  Convention; 

(g)  To  destroy  or  seize  the  enemy's  property,  unless  such  destruc- 
tion or  seizure  be  imperatively  demanded  by  the  necessities  of  war. 

(h)  To  declare  abolished,  suspended,  or  inadmissible  in  a  Court  of 
law  the  rights  and  action  of  the  nationals  of  the  hostile  party. 

A  belligerent  is  likewise  forbidden  to  compel  the  nationals  of  the 
hostile  party  to  take  part  in  the  operations  of  war  directed  against 
their  own  country,  even  if  they  were  in  the  belligerent's  service  be- 
fore the  commencement  of  war. 

Art.  24.  Ruses  of  war  and  the  employment  of  methods  necessary 
to  obtain  information  about  the  enemy  and  the  country,  are  consid- 
ered allowable. 

Art.  25.  The  attack  or  bombardment  by  whatever  means,  of  towns, 
villages,  habitations  or  buildings  which  are  not  defended,  is  pro- 
hibited. 

Art.  26.  The  Commander  of  an  attacking  force,  before  com- 
mencing a  bombardment,  except  in  the  case  of  an  assault,  should  do 
all  he  can  to  warn  the  authorities. 

Art.  27.  In  sieges  and  bombardments  all  necessary  steps  should 
be  taken  to  spare  as  far  as  possible  edifices  devoted  to  religion,  art, 
science,  and  charity,  historic  monuments,  hospitals,  and  places  where 
the  sick  and  wounded  are  collected,  provided  they  are  not  used  at 
the  same  time  for  military  purposes. 

The  besieged  should  indicate  these  buildings  or  places  by  some  par- 
ticular and  visible  signs,  which  should  previously  be  notified  to  the 
assailants. 

Art.  28.  The  pillage  of  a  town  or  place,  even  when  taken  by  as- 
sault, is  prohibited. 


542  APPENDIX    IV. 


Chapter  II. — 0.\  Spies. 

Art.  29.  An  Individual  can  only  be  considered  a  spy  if,  acting 
clandestinely,  or  on  false  pretenses,  he  obtains,  or  seeks  to  obtain 
information  in  the  zone  of  operations  of  a  belligerent,  with  the  in- 
tention of  communicating  it  to  the  hostile  party. 

Thus,  soldiers  not  in  disguise  who  have  penetrated  into  the  zone 
of  operations  of  a  hcstile  army  to  obtain  information  are  not  con- 
sidered spies.  Similarly,  the  following  are  not  considered  spies: 
soldiers  or  civilians,  carrying  out  their  mission  openly,  charged  with 
the  delivery  of  dispatches  destined  either  for  their  own  army  or  for 
that  of  the  enemy.  To  this  class  belong  likewise  individuals  sent  in 
balloons  to  deliver  dispatches,  and  generally  to  maintain  communi- 
cation between  the  various  parts  of  an  army  or  a  territory. 

Art.  30.  A  spy  taken  in  the  act  cannot  be  punished  without  pre- 
vious trial. 

Art.  31.  A  spy  who,  after  rejoining  the  army  to  which  he  belongs, 
is  subsequently  captured  by  the  enemy,  is  treated  as  a  prisoner  of 
war  and  incurs  no  responsibility  for  his  previous  acts  of  espionage. 


Chapter  III. — On  Flags  of  Truce. 

Art.  32.  An  individual  is  considered  as  bearing  a  flag  of  truce 
who  is  authorized  by  one  of  the  belligerents  to  enter  into  communi- 
cation with  the  other,  and  who  carries  a  white  flag.  He  has  a  right 
to  inviolability,  as  well  as  the  trumpeter,  bugler,  or  drummer,  the 
flagbearer  and  the  interpreter  who  may  accompany  him. 

Art.  33.  The  Chief  to  whom  a  flag  of  truce  is  sent  is  not  obliged 
to  receive  it  in  all  circumstances. 

He  can  take  all  steps  necessary  to  prevent  the  envoy  taking  ad- 
vantage of  his  mission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  to  detain  the  envoy  temporarily. 

Art.  34.  The  envoy  loses  his  rights  of  inviolability  if  it  is  proved 
beyond  doubt  that  he  has  taken  advantage  of  his  privileged  position 
to  provoke  or  commit  an  act  of  treachery. 

Chapter  IV. — On  Capitulations. 

Art.  35.  Capitulations  agreed  on  between  the  Contracting  Par- 
ties must  be  in  accordance  with  the  rules  of  military  honor. 

When  once  settled,  they  must  be  scrupulously  observed  by  both 
the  parties. 

Chapter  V. — On  Armistices. 

Art.  36.  An  armistice  suspends  military  operations  by  mutual 
agreement  between  the  belligerent  parties.  If  its  duration  is  not 
fixed,  the  belligerent  parties  can  resume  operations  at  any  time,  pro- 


HAGUE   CONVENTIONS.  543 

vided  always  the  enemy  is  warned  within  the  time  agreed  upon,  In 
accordance  with  the  terms  of  the  armistice. 

Art.  37.  An  armistice  may  be  general  or  local.  The  first  suspends 
all  military  operations  of  the  belligerent  States;  the  second,  only 
those  between  certain  fractions  of  the  belligerent  armies  and  in  a 
fixed  radius. 

Art.  38.  An  armistice  must  be  notified  oflicially,  and  in  good  time, 
to  the  competent  authorities  and  the  troops.  Hostilities  are  suspend- 
ed immediately  after  the  notification,  or  at  a  fixed  date. 

Art.  39.  It  is  for  the  Contracting  Parties  to  settle,  in  the  terms  of 
the  armistice,  what  communications  may  be  held,  on  the  theater  of 
war,  with  the  population  and  between  the  inhabitants  of  one  bel- 
ligerent state  and  those  of  the  other. 

Art.  40.  Any  serious  violation  of  the  armistice  by  one  of  the  par- 
ties gives  the  other  party  the  right  to  denounce  it,  and  even,  in  case 
of  urgency,  to  recommence  hostilities  at  once. 

Art.  41.  A  violation  of  the  terms  of  the  armistice  by  private  in- 
dividuals acting  on  their  own  initiative,  only  confers  the  right  of  de- 
manding the  punishment  of  the  offenders,  and,  if  necessary,  in- 
demnity for  the  losses  sustained. 

SECTION    III.— ON    MILITARY    AUTHORITY    OVER    HOSTILE 

TERRITORY. 

Art.  42.  Territory  is  considered  occupied  when  it  is  actually  placed 
under  the  authority  of  the  hostile  army. 

The  occupation  applies  only  to  the  territory  where  such  authority 
is  established,  and  in  a  position  to  assert  itself. 

Art.  43.  The  authority  of  the  legitimate  power  having  actually 
passed  into  the  hands  of  the  occupant,  the  latter  shall  take  all  steps 
in  his  power  to  reestablish  and  insure,  as  far  as  possible,  public  or- 
der and  safety,  while  respecting,  unless  absolutely  prevented,  the 
laws  in  force  in  the  country. 

Art.  44.  Any  compulsion  of  the  population  of  occupied  territory 
to  furnish  information  about  its  own  army  or  about  its  means  of  de- 
fence is  prohibited. 

Art.  45.  Any  pressure  on  the  population  of  occupied  territory  to 
take  the  oath  to  the  hostile  Power  is  prohibited. 

Art.  46.  Family  honor  and  rights,  individual  lives  and  private 
property,  as  well  as  religious  convictions  and  practice,  must  be  re- 
spected. 

Private  property  cannot  be  confiscated. 

Art.  47.  Pillage  is  formally  prohibited. 

Art.  48.  If,  in  the  territory  occupied,  the  occupant  collects  the 
taxes,  dues,  and  tolls  imposed  for  the  benefit  of  the  State,  he  shall 
do  it,  as  far  as  possible,  in  accordance  with  the  rules  in  existence 
and  the  assessment  in  force,  and  will  in  consequence  be  bound  to 


544  APPENDIX    IV. 

defray  the  expenses  of  the  administration  of  the  occupied  territory 
on  the  same  scale  as  that  by  which  the  legitimate  Government  was 
bound. 

Art.  49.  If,  besides  the  taxes  mentioned  in  the  preceding  Article; 
the  occupant  levies  other  money  taxes  in  the  occupied  territory,  this 
can  only  be  for  military  necessities  or  the  administration  of  such 
territory. 

Art.  50.  No  general  penalty,  pecuniary  or  otherwise,  can  be  in- 
flicted on  the  population  on  account  of  the  acts  of  individuals  for 
which  it  cannot  be  regarded  as  jointly  and  severally  responsible. 

Art.  51.  No  contril/ntion  shall  be  collected  except  under  a  written 
order  and  on  the  responsibility  of  a  Commander-in-Chief. 

This  collection  shall  only  take  place,  as  far  as  possible,  in  accord- 
ance with  the  rules  in  existence  and  the  assessment  of  taxes  in  force. 

For  every  contribution  a  receipt  shall  be  given  to  the  contributors. 

Art.  52.  Neither  requisition  in  kind  nor  services  can  be  demanded, 
from  communes  or  inhabitants  except  for  the  necessities  of  the  army 
of  occupation.  They  must  be  in  proportion  to  the  resources  of  the 
country,  and  of  such  a  nature  as  not  to  involve  the  population  in  the 
obligation  of  taking  part  in  military  operations  against  their  own 
country. 

These  requisitions  and  services  shall  only  be  demanded  on  the  au- 
thority of  the  Commander  in  the  locality  occupied. 

The  requisitions  in  kind  shall,  as  far  as  possible,  be  paid  for  in 
ready  money;  if  not,  a  receipt  shall  be  given  and  the  payment  of 
the  amount  due  shall  be  made  as  soon  as  possible. 

Art.  53.  An  army  of  occupation  can  only  take  possession  of  the 
cash,  funds,  and  property  liable  to  requisition  belonging  strictly  to 
the  State,  depots  of  arms,  means  of  transport,  stores  and  supplies, 
and,  generally,  all  movable  property  of  the  State  which  may  be  used 
for  military  operations. 

All  appliances,  whether  on  land,  at  sea,  or  in  the  air  adapted  for 
the  transmission  of  news,  or  for  the  transport  of  persons  or  things, 
apart  from  cases  governed  by  maritime  law,  as  well  as  depots  of 
arms  and,  generally,  all  kinds  of  war  material,  even  though  belong- 
ing to  Companies  or  to  private  persons,  are  likewise  material  which 
may  serve  for  military  individuals,  but  they  must  be  restored  at  the 
conclusion  of  peace,  and  indemnities  paid  for  them. 

Art.  54.  Submarine  cables  connecting  an  occupied  territory  with 
a  neutral  territory  shall  not  be  seized  or  destroyed  except  in  the 
case  of  absolute  necessity.  They  must  likewise  be  restored  and 
compensation  fixed  when  peace  is  made. 

Art.  55.  The  occupying  State  shall  be  regarded  only  as  adminis- 
trator and  usufructuary  of  the  public  buildings,  X'eal  estate,  forests, 
and  agricultural  works  belonging  to  the  hostile  State,  and  situated 
in  the  occupied  country.  It  must  protect  the  capital  of  these  proper- 
ties, and  administer  it  according  to  the  rules  of  usufruct. 

Art.  5G.  The   property  of   the  communes,   that  of  religious,    char- 


HAGUE   CONVENTIONS.  545 

Itable,  and  educational  institutions,  and  those  of  arts  and  science, 
even  wlien  State  property,  sliall  be  treated  as  private  property. 

All  seizure  of,  and  destruction,  or  intentional  damage  done  to  sucli 
institutions,  to  historical  monuments,  worlvs  of  art  or  science,  is  pro- 
hibited, and  should  be  made  the  subject  of  proceedings. 


SECTION    IV.— ON    THE    INTERNMENT    OP    BELLIGERENTS 

AND  THE  CARE  OF  THE  WOUNDED  IN  NEUTRAL 

COUNTRIES. 

Art.  57.  A  neutral  State  w^hich  receives  in  its  territory  troops  be- 
longing to  the  belligerent  armies  shall  intern  them,  as  far  as  possi- 
ble, at  a  distance  from  the  theater  of  war. 

It  can  keep  them  in  camps,  and  even  confine  them  in  fortresses  or 
locations  assigned  for  this  purpose. 

It  shall  decide  whether  officers  may  be  left  at  liberty  on  giving 
their  parole  that  they  will  not  leave  the  neutral  territory  without 
authorization. 

Art.  58.  Failing  a  special  Convention  to  the  contrary  the  neutral 
'State  shall  supply  the  interned  with  the  food,  clothing,  and  relief 
required  by  humanity. 

At  the  conclusion  of  peace,  the  expenses  caused  by  the  intern- 
ment shall  be  made  good. 

Art.  59.  A  neutral  State  may  authorize  the  passage  through  its 
territory  of  wounded  or  sick  belonging  to  the  belligerent  armies,  on 
condition  that  the  trains  bringing  them  shall  carry  neither  combat- 
ants nor  war  material.  In  such  a  case,  the  neutral  State  is  bound 
to  adopt  such  measures  of  safety  and  control  as  may  be  necessary 
for  the  purpose. 

Wounded  and  sick  brought  under  these  conditions  into  neutral 
territory  by  one  of  the  belligerents,  and  belonging  to  the  hostile 
party,  must  be  guarded  by  the  neutral  State,  so  as  to  insure  their 
not  taking  part  again  in  the  military  operations.  The  same  duty 
shall  devolve  on  the  neutral  State  with  regard  to  wounded  or  sick 
of  the  other  army  who  may  be  committed  to  its  care. 

Art.  60.  The  Geneva  Convention  applies  to  sick  and  wounded  in- 
terned in  neutral  territory. 

WiLS.lNT.L.— 35 


546  APPENDIX   IV. 


CONVENTION    RESPECTING    THE    RIGHTS    AND 
DUTIES  OF  NEUTRAL  POWERS  AND  PER- 
SONS IN  CASE  OF  WAR  ON  LAND. 


[Names  of  States.] 

With  a  view  to  laying  down  more  clearly  the  rights  and  duties  of 
neutral  Powers  in  case  of  war  on  land  and  regulating  the  position  of 
the  belligerents  who  have  taken  refuge  in  neutral  territory. 

Being  likewise  desirous  of  defining  the  meaning  of  the  term  "neu- 
tral," pending  the  possibility  of  settling,  in  its  entirety,  the  position 
of  neutral  individuals  in  their  relations  with  the  belligerents, 

Have  resolved  to  conclude  a  Convention  to  this  effect,  and  have,  in 
consequence,  appointed  the  following  as  their  Plenipotentiaries: 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  provisions: 

CHArxER  I. — The  Rights  and  Duties  of  Neutral  Powees. 

Article  1.    The  territory  of  neutral  Powers  is  inviolable. 

Art.  2.  Belligerents  are  forbidden  to  move  troops  or  convoys  of 
either  munitions  of  war  or  supplies  across  the  territory  of  a  neutral 
Power. 

Art.  3.  Belligerents  are  likewise  forbidden  to: 

(a)  Erect  on  the  territory  of  a  neutral  Power  a  wireless  telegraphy 
station  or  other  apparatus  for  the  purpose  of  communicating  with 
belligerent  forces  on  land  or  sea. 

(b)  Use  any  installation  of  this  kind  established  by  them  before 
the  war  on  the  territory  of  a  neutral  Power  for  purely  military  pur- 
poses, and  which  has  not  been  opened  for  the  service  of  public  mes- 
sages. 

Art.  4.  Corps  of  combatants  cannot  be  formed  nor  recruiting  agen- 
cies opened  on  the  territory  of  a  neutral  Power  to  assist  the  bel- 
ligerents. 

Art.  5.  A  neutral  Power  must  not  allow  any  of  the  acts  referred 
to  in  Articles  2  to  4  to  occur  on  its  territory. 

It  is  not  called  upon  to  punish  acts  in  violation  of  its  neutrality 
unless  the  said  acts  have  been  committed  on  its  own  territory. 

Art.  6.  The  responsibility  of  a  nentral  Power  is  not  engaged  by  the 
fact  of  persons  crossing  the  frontier  separately  to  offer  their  services 
to  one  of  the  belligerents. 


HAGUE   CONVENTIONS.  547 

Art.  7.  A  neutral  Power  is  not  called  upon  to  prevent  the  export  or 
transport,  on  behalf  of  one  or  other  of  the  belligerents,  of  arms, 
munitions  of  war,  or.  in  general,  of  anything  which  can  be  of  use  to 
an  army  or  a  fleet. 

Art.  8.  A  neutral  Power  is  not  called  upon  to  forbid  or  restrict  the 
use  on  behalf  of  the  belligerents  of  telegraph  or  telephone  cables  or 
of  wireless  telegraphy  apparatus  belonging  to  it  or  to  Companies  or 
private   individuals. 

Art.  9.  Every  measure  of  restriction  or  prohibition  taken  by  a  neu- 
tral Power  in  regard  to  the  matters  referred  to  in  Articles  7  and  8 
must  be  impartially  applied  by  it  to  both  belligerents. 

A  neutral  Power  must  see  to  the  same  obligation  being  observed 
by  Companies  or  private  individuals  owning  telegraph  or  telephone 
cables  or  wireless  telegraphy  apparatus. 

Art.  10.  The  fact  of  a  neutral  Power  resisting,  even  by  force,  at- 
tempts to  violate  its  neutrality  cannot  be  regarded  as  a  hostile  act. 

Chapter   II. — Belligehents   Interned   and    Wounded   Tended   in 
Neutral  Territory. 

Art.  11.  A  neutral  Power  which  receives  on  its  territory  troops  be- 
longing to  the  belligerent  armies  shall  intern  them,  as  far  as  possible, 
at  a  distance  from  the  theatre  of  war. 

It  may  keep  them  in  camps  and  even  confine  them  in  fortresses  or 
in  places  set  apart  for  this  purpose. 

It  shall  decide  whether  officers  can  be  left  at  liberty  on  giving  their 
parole  not  to  leave  the  neutral  territory  without  permission. 

Art.  12.  In  the  absence  of  a  special  Convention  to  the  contrary,  the 
neutral  Power  shall  supply  the  interned  with  the  food,  clothing  and 
relief  required  by  humanity. 

At  the  conclusion  of  peace  the  expenses  caused  by  the  internment 
shall  be  made  good. 

Art.  13.  A  neutral  Power  which  receives  escaped  prisoners  of  war 
shall  leave  them  at  liberty.  If  it  allows  them  to  remain  in  its  ter- 
ritory it  may  assign  them  a  place  of  residence. 

The  same  rule  applies  to  prisoners  of  war  brought  by  troops  taking 
refuge  in  the  territory  of  a  neutral  Power. 

Art.  14.  A  neutral  Power  may  authorize  the  passage  into  its  ter- 
ritory of  the  sick  and  wounded  belonging  to  the  belligerent  armies,  on 
condition  that  the  trains  bringing  them  shall  carry  neither  personnel 
nor  war  material.  In  such  a  case,  the  neutral  Power  is  bound  to  take 
whatever  measures  of  safety  and  control  are  necessary  for  the  .pur- 
pose. 

The  sick  or  wounded  brought  under  these  conditions  into  neutral 
territory  by  one  of  the  belligerents,  and  belonging  to  the  hostile  party, 
must  be  guarded  by  the  neutral  Power  so  as  to  insure  their  not  taking 
part  again  in  the  military  operations.    The  same  duty  shall  devolve 


548  APPENDIX   IV. 

on  the  neutral   State  with  regard  to  wounded  or  sick  of  the  other 
army  who  may  be  committed  to  its  care. 

Art.  15.  The  Geneva  Convention  applies  to  sick  and  wounded  in- 
terned iu  neutral  territory. 

Ohapteb  III. — Neutkal  Persons, 

Art.  16.  The  nationals  of  a  State  which  Is  not  taking  part  In  the 
war  are  considered  as  neutrals. 

Art.  17.  A  neutral  cannot  avail  himself  of  his  neutrality: 

(a)  If  he  commits  hostile  acts  against  a  belligerent. 

(b)  If  he  commits  acts  in  favor  of  a  belligerent,  particularly  if  he 
voluntarily  enlists  in  the  ranks  of  the  armed  force  of  one  of  the  par- 
ties. 

In  such  a  ease,  the  neutral  shall  not  be  more  severely  treated  by 
the  belligerent  as  against  whom  he  has  abandoned  his  neutrality  than 
a  national  of  the  other  belligerent  State  could  be  for  the  same  act. 

Art.  18.  The  following  acts  shall  not  be  considered  as  committed 
in  favor  of  one  belligerent  in  the  sense  of  Article  17,  letter  (b): 

(a)  Supplies  furnished  or  loans  made  to  one  of  the  belligerents,  pro- 
vided that  the  person  who  furnishes  the  supplies  or  who  makes  the 
loans  lives  neither  iu  the  territory  of  the  other  party  nor  in  the  ter- 
ritory occupied  by  him,  and  that  the  supplies  do  not  come  from  these 
territories. 

(b)  Services  rendered  in  matters  of  police  or  civil  administration. 

Chaptek  IV. — Railway  Material. 

Art.  19.  Railway  material  coming  from  the  territory  of  neutral 
Powers,  whether  it  be  the  property  of  the  said  Powers  or  of  Com- 
panies or  private  persons,  and  recognizable  as  such,  shall  not  be  req- 
uisitioned or  utilized  by  a  belligerent  except  where  and  to  the  extent 
that  it  Is  absolutely  necessary.  It  shall  be  sent  back  as  soon  as  pos- 
sible to  the  country  of  origin. 

A  neutral  Power  may  likewise,  in  case  of  necessity,  retain  and 
utilize  to  an  equal  extent  material  coming  from  the  territory  of  the 
belligerent  Power. 

Compensation  shall  be  paid  by  one  party  or  the  other  in  proportion 
to  the  material  used,  and  to  the  period  of  usage. 

Ohapteb  V. — Final  Provisions. 

Art.  20.  The  provisions  of  the  present  Convention  do  not  apply 
except  between  Contracting  Powers,  and  then  only  if  all  the  belliger- 
ents are  parties  to  the  Convention. 

[Articles  providing  for  ratification  follow.] 


HAGUE   CONVENTIONS.  549 


CONVENTION  FOR  THE  ADAPTATION  TO  NAVAL 

WAR  OF  THE  PRINCIPLES  OF  THE  GENEVA 

CONVENTION. 


[Names  of  States.] 

Animated  alike  by  the  desire  to  diminish,  as  far  as  depends  on  them, 
the  inevitable  evils  of   war. 

And  wishing  with  this  object  to  adapt  to  maritime  warfare  the 
principles  of  the  Geneva  Convention  of  the  6th  July,  1906, 

Have  resolved  to  conclude  a  Convention  for  the  purpose  of  revising 
the  Convention  of  the  29th  July,  1899,  relative  to  this  question,  and 
have  appointed  the  following  as  their  Plenipotentiaries: 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  provisions: 

-Article  1.  Military  hospital-ships,  that  is  to  say,  ships  constructed 
or  assigned  by  States  specially  and  solely  with  a  view  to  assisting 
the  wounded,  sick,  and  shipwrecked,  the  names  of  which  have  been 
communicated  to  the  belligerent  Powers  at  the  commencement  or 
during  the  course  of  hostilities,  and  in  any  case  before  they  are  em- 
ployed, shall  be  respected,  and  cannot  be  captured  while  hostilities 
last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  war-ships  as 
regards  their  stay  in  a  neutral  port. 

Art.  2.  Hospital-ships,  equipped  wholly  or  in  part  at  the  expense 
of  private  individuals  or  ofBcially  recognized  relief  societies,  shall  be 
likewise  respected  and  exempt  from  capture,  if  the  belligerent  Power 
to  whom  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  hostile  Power  at  the  commencement  of  or 
during  hostilities,  and  in  any  case  before  they  are  employed. 

These  ships  must  be  provided  with  a  certificate  from  the  competent 
authorities  declaring  that  the  vessels  have  been  under  their  control 
while  fitting  out  and  on  final  departure. 

Art.  3.  Hospital-ships,  equipped  wholly  or  in  part  at  the  expense 
of  private  individuals  or  officially  recognized  societies  of  neutral  conn- 
tries,  shall  be  respected  and  exempt  from  capture,  on  condition  that 
they  are  placed  under  the  control  of  one  of  the  belligerents,  with  the 
previous  consent  of  their  own  Government  and  with  the  authorization 
of  the  belligerent  himself,  and  that  the  latter  has  notified  their  name 
to  his  adversaiy  at  the  commencement  of  or  during  hostilities,  and  in 
any  case,  before  they  are  employed. 


550  APPENDIX   IV. 

Art.  4.  The  ships  mentioned  in  Articles  1,  2,  and  3  shall  afford 
relief  and  assistance  to  the  wounded,  sick,  and  shipwrecked  of  the 
belligerents  without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military 
purpose. 

These  vessels  must  in  no  wise  hamper  the  movements  of  the  com- 
batants. 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and 
peril. 

The  belligerents  shall  have  the  right  to  control  and  visit  them  ;  they 
can  refuse  their  help,  order  them  off.  make  them  take  a  certain  course, 
and  put  a  Commissioner  on  board;  they  can  even  detain  them,  if  im- 
portant circumstances  require  it. 

As  far  as  possible,  the  belligerents  shall  enter  in  the  log  of  the  hos- 
pital-ships the  orders  which  they  give  them. 

Art.  5.  Military  hospital-ships  shall  be  distinguished  by  being 
paintetl  white  outside  with  a  horizontal  band  of  green  about  a  metre 
and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by 
being  painted  white  outside  with  a  horizontal  band  of  red  about  a 
metre  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which 
may  be  used  for  hospital  work,  shall  be  distinguished  by  similar 
painting. 

All  hospital-ships  shall  make  themselves  known  by  hoisting,  with 
their  national  flag,  the  white  flag  with  a  red  cross  provided  by  the 
Geneva  Convention,  and  further,  if  they  belong  to  a  neutral  State,  by 
flying  at  the  mainmast  the  national  flag  of  the  belligerent  under  whose 
control  they  are  placed. 

Hospital-ships  which,  in  the  terms  of  Article  4.  are  detained  by  the 
enemy,  must  haul  down  the  national  flag  of  the  belligerent  to  whom 
they  belong. 

The  ships  and  boats  above  mentioned  which  wish  to  insure  by 
night  the  freedom  from  interference  to  which  they  are  entitled,  must, 
subject  to  the  assent  of  the  belligerent  they  are  accompanying,  take 
the  necessary  measures  to  render  their  special  painting  sufficiently 
plain. 

Art.  6.  The  distinguishing  signs  referred  to  in  Article  5  can  only 
be  used,  whether  in  time  of  peace  or  war,  for  protecting  or  indicating 
the  ships  therein  mentioned. 

Art.  7.  In  the  case  of  a  fight  on  board  a  war-ship,  the  sick-wards 
shall  be  respected  and  spared  as  far  as  possible. 

The  said  sick- wards  and  the  materiel  belonging  to  tln'm  remain  sub- 
ject to  the  laws  of  war ;  they  cannot,  however,  be  used  for  any  pur- 
pose other  than  that  for  which  they  were  originally  intended,  so  long 
as  they  are  required  for  the  sick  and  wounded. 

The  commander,  however,  into  whose  power  they  have  fallen  may 
apply  them  to  other  purposes,  if  the  military  situation  requires  it, 


HAGUE   CONVENTIONS.  551 

after  seeing  that  the  sick  and  wounded  on  board  are  properly  provided 
for. 

Art.  8.  Hospital-ships  and  sick -wards  of  vessels  are  no  longer  en- 
titled to  protection  if  they  are  employed  for  the  purpose  of  injuring 
the  enemy. 

The  fact  of  the  staff  of  the  said  ships  and  sick-wards  being  armed 
for  maintaining  order  and  for  defending  the  sick  and  wounded,  and 
the  presence  of  wireless  telegraphy  apparatus  on  board,  is  not  a  suf- 
ficient reason  for  withdrawing  protection. 

Art.  9.  Belligerents  may  appeal  to  the  charity  of  the  commanders 
of  neutral  merchant-ships,  yachts,  or  boats  to  take  on  board  and 
tend  the  sick  and  wounded. 

Vessels  responding  to  this  appeal,  and  also  vessels  which  have  of 
their  own  accord  rescued  sick,  wounded,  or  shipwrecked  men,  shall 
enjoy  special  protection  and  certain  immunities.  In  no  case  can  they 
be  captured  for  having  such  persons  on  board,  but,  apart  from  special 
undertakings  that  have  been  made  to  them,  they  remain  liable  to 
capture  for  any  violations  of  neutrality  they  may  have  committed. 

Art.  10.  The  religious,  medical,  and  hospital  staff  of  any  cap- 
tured ship  is  inviolable,  and  its  members  cannot  be  made  prisoners 
of  war.  On  leaving  the  ship  they  take  away  with  them  the  objects 
and  surgical  instruments  which  are  their  own  private  property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary, 
and  can  afterwards  leave,  when  the  Commander-in-chief  considers  it 
possible. 

The  belligerents  must  guarantee  to  the  said  staff,  when  it  has  fallen 
into  their  hands,  the  same  allowances  and  pay  which  are  given  to  the 
staff  of  corresponding  rank  in  their  own  navy. 

Art.  11.  Sailors  and  soldiers  on  board,  when  sick  or  wounded,  as 
well  as  other  persons  officially  attached  to  fleets  or  armies,  whatever 
their  nationality,  shall  be  respected  and  tended  by  the  captors. 

Art.  12.  Any  war-ship  belonging  to  a  belligerent  may  demand  that 
sick,  wounded,  or  shipwrecked  men  on  board  military  hospital-ships, 
hospital-ships  belonging  to  relief  societies  or  to  private  individuals, 
merchant-ships,  yachts,  or  boats,  whatever  the  nationality  of  these 
vessels,  should  be  handed  over. 

Art.  13.  If  sick,  wounded,  or  shipwrecked  persons  are  taken  on 
board  a  neutral  war-ship,  every  possible  precaution  must  be  taken 
that  they  do  not  again  take  part  in  the  operations  of  the  war. 

Art.  14.  The  shipwrecked,  wounded,  or  sick  of  one  of  the  bellig- 
erents who  fall  into  the  power  of  the  other  belligerent  are  prisoners  of 
war.  The  captor  must  decide,  according  to  circumstances,  whether 
to  keep  them,  send  them  to  a  port  of  his  own  country,  to  a  neutral 
port,  or  even  to  an  enemy  port.  In  this  last  case,  prisoners  thus  re- 
patriated cannot  serve  again  while  the  war  lasts. 

Art.  15.  The  shipwrecked,  sick,  or  wounded,  who  are  landed  at  a 
neutral  port  with  the  consent  of  the  local  authorities,  must,  unless  an 
arrangement  is  made  to  the  contrary  between  the  neutral  State  and 


552  APPENDIX   IV. 

the  belligerent  States,  be  guarded  by  the  neutral  State  so  as  to  pre- 
vent them  again  taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall 
be  borne  by  the  State  to  which  the  shipwrecked,  sick,  or  wounded 
persons  belong. 

Art.  16.  After  every  engagement,  the  two  belligerents,  so  far  as 
military  interests  permit,  shall  take  steps  to  look  for  the  shipwrecked, 
sick,  and  wounded,  and  to  protect  them,  as  well  as  the  dead,  against 
pillage  and  ill-treatment. 

They  shall  see  that  the  burial,  whether  by  land  or  sea,  or  cremation 
of  the  dead  shall  be  preceded  by  a  careful  examination  of  the  corpse. 

Art.  17.  Each  belligerent  shall  send,  as  early  as  possible,  to  the  au- 
thorities of  their  country,  navy,  or  army,  the  military  marks  or  doc- 
uments of  Identity  found  on  the  dead  and  the  description  of  the  sick 
and  wounded  picked  up  by  him. 

The  belligerents  shall  keep  each  other  reciprocally  informed  as  to 
internments  and  transfers  as  well  as  to  the  admissions  into  hospital 
and  deaths  which  have  occurred  among  the  sick  and  wounded  in  their 
hands.  They  shall  collect  all  the  objects  of  personal  use,  valuables, 
letters,  etc.,  which  are  found  in  the  captured  ships,  or  which  have  been 
left  by  the  sick  or  wounded  who  died  in  hospital,  in  order  to  have 
them  forwarded  to  the  persons  concerned  by  the  authorities  of  their 
own  country. 

Art.  18.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  Contracting  Powers,  and  then  only  if  all  the  belliger- 
ents are  parties  to  the  Convention. 

Art.  19.  The  Commanders-in-chief  of  the  belligerent  fleets  must  see 
that  the  above  Articles  are  properly  carried  out ;  they  will  have  also 
to  see  to  cases  not  covered  thereby,  in  accordance  with  the  instruc- 
tions of  their  respective  Governments  and  in  conformity  with  the 
general  principles  of  the  present  Convention. 

Art.  20.  The  Signatory  Powers  shall  take  the  necessary  measures 
for  bringing  the  provisions  of  the  present  Convention  to  the  knowl- 
edge of  their  naval  forces,  and  especially  of  the  members  entitled 
thereunder  to  immunity,  and  for  making  them  known  to  the  public. 

Art.  21.  The  Signatory  Powers  likewise  undertake  to  enact  or  to 
propose  to  their  Legislatures,  if  their  criminal  laws  are  inadequate, 
the  measures  necessary  for  checking  in  time  of  war  individual  acts  of 
pillage  and  ill-treatment  in  respect  to  the  sick  and  wounded  in  the 
fleet,  as  well  as  for  punishing,  as  an  unjustifiable  adoption  of  naval  or 
military  marks,  the  unauthorized  use  of  the  distinctive  marks  men- 
tioned in  Article  5  by  vessels  not  protected  by  the  present  Convention. 

Tliey  will  communicate  to  each  other,  through  the  Netherland  Gov- 
ernment, the  enactments  for  preventing  such  acts  at  the  latest  within 
flve  years  of  the  ratification  of  the  present  Convention. 

Art.  22.  In  the  ease  of  operations  of  war  between  the  land  and 
sea  forces  of  belligerents,  the  provisions  of  the  present  Convention  do 
not  apply  except  between  the  forces  actually  on  board  ship. 


HAGUE  CONVENTIONS.  553 

Art.  23.  [As  to  ratification.] 

Art.  24.  Non-Signatoi-y  Powers  which  have  accepted  the  Geneva 
Convention  of  the  6th  July,  1906,  may  adhere  to  the  present  Conven- 
tion. 

The  Power  which  desires  to  adhere  notifies  its  intention  to  the 
Netherland  Government  in  writing,  forwarding  to  it  the  act  of  ad- 
hesion, which  shall  be  deposited  in  the  archives  of  the  said  Govern- 
ment. 

The  said  Government  shall  at  once  transmit  to  all  the  other  Powers 
a  duly  certified  copy  of  the  notification  as  well  as  of  the  act  of  ad- 
hesion, mentioning  the  date  on  which  it  received  the  notification. 

Art.  25.  The  present  Convention,  duly  ratified,  shall  replace  as  be- 
tween Contracting  Powers,  the  Convention  of  the  29th  .July,  1899, 
for  the  adaptation  to  maritime  warfare  of  the  principles  of  the  Gene- 
va Convention. 

The  Convention  of  1899  remains  in  force  as  between  the  Powers 
which  signed  it  but  which  do  not  also  ratify  the  present  Convention. 

Arts.  26-28.  [As  to  ratification.] 


554  APPENDIX  IV. 


CONVENTION  RELATIVE  TO  THE  CREATION  OF 
AN  INTERNATIONAL  PRIZE  COURT. 


[Names  of  States.] 


Animated  by  the  desire  to  settle  in  au  equitable  manner  the  differ- 
ences which  sometimes  arise  in  the  course  of  a  naval  war  in  connec- 
tion with  the  decisions  of  National  Prize  Courts ; 

Considering  that,  if  these  Courts  are  to  continue  to  exercise  their 
functions  in  the  manner  determined  by  national  legislation  it  is  desir- 
able that  in  certain  cases  an  appeal  should  be  provided,  under  condi- 
tions conciliating,  as  far  as  possible,  the  public  and  private  interests 
involved  in  matters  of  prize; 

Whereas,  moreover,  the  institution  of  an  International  Court,  whose 
jurisdiction  and  procedure  would  be  carefully  defined,  has  seemed  to 
be  the  best  method  of  attaining  this  object ; 

Convinced,  finally,  that  in  this  manner  the  hardships  consequent 
on  naval  war  would  be  mitigated ;  that,  in  particular,  good  relations 
will  be  more  easily  maintained  between  belligerents  and  neutrals  and 
peace  better  assured; 

Desirous  of  concluding  a  Convention  to  this  effect,  have  appointed 
the  following  as  their  Plenipotentiaries: 

[Names  of  Plenipoteutaries.] 

Who,  after  depositing  their  full  powers,  found  in  good  and  due 
form,  have  agreed  upon  the  following  provisions: 

PART  I.— GENERAL  PROVISIONS. 

Article  1.  The  validity  of  the  capture  of  a  merchant-ship  or  its 
cargo  is  decided  before  a  Prize  Court  in  accordance  with  the  present 
Convention  when  neutral  or  enemy  property  is  involved. 

Art.  2.  Jurisdiction  in  matters  of  prize  is  exercised  in  the  first  in- 
stance by  the  Prize  Courts  of  the  belligerent  captor. 

The  judgments  of  these  Courts  are  pronounced  in  public  or  are 
officially  notified  to  parties  concerned  who  are  neutrals  or  enemies. 

Art.  3.  The  judgments  of  National  Prize  Courts  may  be  brought 
before  the  International  Prize  Court — 

1.  When  the  judgment  of  the  National  Prize  Courts  affects  the  prop- 
erty of  a  neutral  Power  or  individual. 

2.  When  the  judgment  affects  enemy  property  and  relates  to — • 

(a)  Cargo  on  board  a  neutral  ship ; 

(b)  An  enemy  ship  captured  in  the  territorial  waters  of  a  neutral 
Power,  when  that  Power  has  not  made  the  capture  the  subject  of  a 
diplomatic  claim; 


HAGUE   CONVENTIONS.  555 

(c)  A  claim  based  upon  the  allegation  that  the  seizure  has  been 
effected  in  violation,  either  of  the  provisions  of  a  Convention  in  force 
between  the  belligerent  Powers,  or  of  an  enactment  issued  by  the 
boll  igo rent  captor. 

The  appeal  against  the  judgment  of  the  National  Court  can  be 
based  on  the  ground  that  the  judgment  was  wrong  either  in  fact  or 
in  law. 

Art.  4.  An  appeal  may  be  brought — 

1.  By  a  neutral  Power,  if  the  judgment  of  the  National  Tribunals 
iiijuriously  affects  its  property  or  the  property  of  its  nationals  (Article 
3  (1)  ),  or  if  the  capture  of  an  enemy  vessel  is  alleged  to  have  taken 
place  in  the  territorial  waters  of  that  Power  (Article  3  (2)  (b)  ). 

2.  By  a  neutral  individual,  if  the  judgment  of  the  National  Court 
injuriously  affects  his  property  (Article  3  (1)  ),  subject,  however,  to 
the  reservation  that  the  Power  to  which  he  belongs  may  forbid  him 
to  bring  the  case  before  the  Court,  or  may  itself  undertake  the  pro- 
ceedings in  his  place. 

3.  By  an  individual  subject  or  citizen  of  an  enemy  Power,  if  the 
judgment  of  the  National  Court  injuriously  affects  his  property  in  the 
cases  referred  to  in  Article  3  (2),  except  that  mentioned  in  para- 
graph (b). 

Art.  5.  An  appeal  may  also  be  brought  on  the  same  conditions  as 
in  the  preceding  Article,  by  persons  belonging  either  to  neutral  States 
or  to  the  enemy,  deriving  their  rights  from  and  entitled  to  represent 
an  individual  qualified  to  appeal,  and  who  have  taken  part  in  the  pro- 
ceedings before  the  National  Court.  Persons  so  entitled  may  appeal 
separately  to  the  extent  of  their  interest. 

The  same  rule  applies  in  the  case  of  persons  belonging  either  to 
neutral  States  or  to  the  enemy  who  derive  their  rights  from  and  are 
entitled  to  represent  a  neutral  Power  whose  property  was  the  subject 
of  the  decision. 

Art.  6.  When,  in  accordance  with  the  above  Article  3,  the  Inter- 
national Court  has  jurisdiction,  the  National  Courts  cannot  deal  with 
a  case  in  more  than  two  instances.  The  municipal  law  of  the  bellig- 
erent captor  shall  decide  whether  the  case  may  be  brought  before  the 
International  Court  after  judgment  has  been  given  in  first  instance  or 
only  after  an  appeal. 

If  the  National  Courts  fail  to  give  final  judgment  within  two  years 
from  the  date  of  capture,  the  case  may  be  carried  direct  to  the  Inter- 
national Court. 

Art.  7.  If  a  question  of  law  to  be  decided  is  covered  by  a  Treaty 
in  force  between  the  belligerent  captor  and  a  Power  which  is  itself  or 
whose  subject  or  citizen  is  a  party  to  the  proceedings,  the  Court  is 
governed  by  the  provisions  of  the  said  Treaty. 

In  the  absence  of  such  provisions,  the  dourt  shall  apply  the  rules 
of  international  law.  If  no  generally  recognized  rule  exists,  the  Court 
shall  give  judgment  in  accordance  with  the  general  principles  of  jus- 
tice and  equity. 


556  APPENDIX   IV. 

The  above  provisions  apply  equally  to  questions  relating  to  the 
order  and  mode  of  proof. 

If,  in  accordance  with  Article  3  (2)  (c),  the  ground  of  appeal  is  the 
violation  of  an  enactment  issued  by  the  belligerent  captor,  the  Court 
will  enforce  the  enactment. 

The  Coiu-t  may  disregard  failure  to  comply  with  the  procedure  laid 
down  in  the  enactments  of  the  belligerent  captor,  when  it  is  of  opinion 
that  the  consequences  of  complying  therewith  are  unjust  and  inequi- 
table. 

Art.  8.  If  the  Court  pronounces  the  capture  of  the  vessel  or  cargo 
to  be  valid,  they  shall  be  disposed  of  in  accordance  with  the  laws  of 
the  belligerent  captor. 

If  it  pronounces  the  capture  to  be  null,  the  Court  shall  order  resti- 
tution of  the  vessel  or  cargo,  and  shall  fix.  if  there  is  occasion,  the 
amount  of  the  damages.  If  the  vessel  or  cargo  have  been  sold  or  de- 
stroyed, the  Court  shall  determine  the  compensation  to  be  given  to 
the  owner  on  this  account. 

If  the  national  Court  pronounced  the  capture  to  be  null,  the  Court 
can  only  be  asked  to  decide  as  to  the  damages. 

Art.  9.  The  Contracting  Powers  undertake  to  submit  in  good  faith 
to  the  decisions  of  the  Intsrnational  Prize  Court  and  to  carry  them 
out  with  the  least  possible  delay. 


PART    II.— CONSTITUTION    OF    THE    INTERNATIONAL 
PRIZE  COURT. 

Art.  10.  The  International  Prize  Court  is  composed  of  Judges  and 
Deputy  Judges,  who  will  be  appointed  by  the  Contracting  Powers, 
and  must  all  be  jurists  of  known  proficiency  in  questions  of  inter- 
national maritime  law,  and  of  the  highest  moral  reputation. 

The  appointment  of  these  Judges  and  Deputy  Judges  shall  be  made 
within  six  months  after  the  ratification  of  the  present  Convention. 

Art.  11.  The  Judges  and  Deputy  Judges  are  appointed  for  a  pe- 
riod of  six  years,  reckoned  from  the  date  on  which  the  notification 
of  their  appointment  is  received  by  the  Administrative  Council  estab- 
lished by  the  Convention  for  the  Pacific  Settlement  of  International 
Disputes  of  the  29th  July,  1899.    Their  appointments  can  be  renewed. 

Should  one  of  the  Judges  or  Deputy  Judges  die  or  resign,  the  same 
procedure  is  followed  for  filling  the  vacancy  as  was  followed  for  ap- 
pointing him.  In  this  case,  the  appointment  is  made  for  a  fresh 
period  of  six  years. 

Art.  12.  The  Judges  of  the  International  Prize  Court  are  all  equal 
in  rank  and  have  precedence  according  to  the  date  on  which  the 
notification  of  their  appointment  was  received  (Article  11,  paragraph 
1),  and  if  they  sit  by  rota  (Article  15,  paragraph  2),  according  to  the 
date  on  which  they  entered  upon  their  duties.  When  the  date  is  the 
same  the  senior  in  age  takes  precedence. 


HAGUE   CONVENTIONS.  557 

The  Deputy  Judges  when  acting  are  assimilated  to  the  Judges. 
They  rank,  however,  after  them. 

Art.  13.  The  Judges  enjoy  diplomatic  privileges  and  immunities 
in  the  performance  of  their  duties  and  when  outside  their  own 
country. 

Before  taking  their  seat,  the  Judges  must  swear,  or  make  a  solemn 
promise  before  the  Administrative  Council,  to  discharge  their  duties 
impartially  and  conscientiously. 

Art.  14.  The  Court  is  composed  of  fifteen  Judges ;  nine  Judges 
constitute  a  quorum. 

A  Judge  who  is  absent  or  prevented  from  sitting  Is  replaced  by  the 
Deputy  Judge. 

Art.  15.  The  Judges  appointed  by  the  following  Contracting  Pow- 
ers: Germany,  the  United  States  of  America,  Austria-Hungary, 
France,  Great  Britain,  Italy,  Japan,  and  Russia,  are  always  sum- 
moned to  sit. 

The  Judges  and  Deputy  Judges  appointed  by  the  other  Contracting 
Powers  sit  by  rota  as  shown  in  the  Table  annexed  to  the  present  Con- 
vention ;  their  duties  may  be  performed  successively  by  the  same  per- 
son. The  same  Judge  may  be  appointed  by  several  of  the  said 
Powers. 

Art.  16.  If  a  belligerent  Power  has,  according  to  the  rota,  no  Judge 
sitting  in  the  Court,  it  may  ask  that  the  Judge  appointed  by  it 
should  take  part  in  the  settlement  of  all  cases  arising  from  the  war. 
Lots  shall  then  be  drawn  as  to  which  of  the  Judges  entitled  to  sit  ac- 
cording to  the  rota  shall  withdraw.  This  arrangement  does  not  af- 
fect the  Judge  appointed  by  the  other  belligerent. 

Art.  17.  No  Judge  can  sit  who  has  been  a  party,  in  any  way  what- 
ever, to  the  sentence  pronounced  by  the  National  Courts,  or  has  taken 
part  in  the  case  as  counsel  or  advocate  for  one  of  the  parties. 

No  Judge  or  Deputy  Judge  can,  during  his  tenure  of  office,  appear 
as  agent  or  advocate  before  the  International  Prize  Court,  nor  act 
for  one  of  the  parties  in  any  capacity  whatever. 

Art.  18.  The  belligerent  captor  is  entitled  to  appoint  a  naval  offi- 
cer of  high  rank  to  sit  as  Assessor,  but  with  no  voice  in  the  decision. 
A  neutral  Power,  which  is  a  party  to  the  proceedings  or  whose  sub- 
ject or  citizen  is  a  party,  has  the  same  right  of  appointment;  if  as 
the  result  of  this  last  provision  more  than  one  Power  is  concerned, 
they  must  agree  among  themselves,  if  necessary  by  lot,  on  the  officer 
to  be  appointed. 

Art.  19.  The  Court  elects  its  President  and  Vice-President  by  an 
absolute  majority  of  the  votes  cast.  After  two  ballots,  the  election 
is  made  by  a  bare  majority,  and,  in  case  the  votes  are  equal,  by  lot. 

Art.  20.  The  Judges  on  the  International  Prize  Court  are  entitled 
to  travelling  allowances  in  accordance  with  the  regulations  in  force 
in  their  own  country,  and  in  addition  receive,  while  the  Court  is  sit- 
ting or  while  they  are  carrying  out  duties  conferred  upon  them  by 
the  Court,  a  sum  of  100  Netherland  florins  per  diem. 


558  APPENDIX   IV. 

These  payments  are  included  in  the  general  expenses  of  the  Court 
dealt  with  In  Article  47,  and  are  paid  through  the  International  Bu- 
reau established  by  the  Convention  of  the  29th  July,  1899. 

The  Judges  may  not  receive  from  their  own  Government  or  from 
that  of  any  other  Power  any  remuneration  in  their  capacity  of  mem- 
bers of  the  Court. 

Art.  21.  The  seat  of  the  International  Prize  Court  is  at  The  Hague 
and  it  cannot,  except  in  the  case  of  force  majeure,  be  transferred  else- 
where without  the  consent  of  the  belligerents. 

Art.  22.  The  Administrative  Council  fullils,  with  regard  to  the  In- 
ternational Prize  Court,  the  same  functions  as  to  the  Permanent 
Court  of  Arbitration,  but  only  Representatives  of  Contracting  I'ow- 
ers  will  be  members  of  it 

Art.  23.  The  International  Bureau  acts  as  registry  to  the  Inter- 
national Prize  Court  and  must  place  its  otrices  and  staff  at  the  dis- 
posal of  the  Court,  It  has  charge  of  the  archives  and  carries  out 
the  administrative  work. 

The  Secretary-General  of  the  International  Bureau  acts  as  Reg- 
istrar. 

The  necessary  secretaries  to  assist  the  Registrar,  translators  and 
shorthand  writers  are  appointed  and  sworn  in  by  the  Court. 

Art.  24.  The  Court  determines  which  language  it  will  itself  use 
and  what  languages  may  be  used  before  it. 

In  every  case  the  official  language  of  the  National  Courts  which 
have  had  cognizance  of  the  case  may  always  be  used  before  the 
Court. 

Art.  25.  Powers  which  are  concerned  in  a  case  may  appoint  spe- 
cial agents  to  act  as  intermediaries  between  themselves  and  the 
Court.  They  may  also  engage  counsel  or  advocates  to  defend  their 
rights  and  interests. 

Art.  2G.  A  private  person  concerned  in  a  case  will  be  represented 
before  the  Court  by  an  attorney,  who  must  be  either  an  advocate 
qualified  to  plead  before  a  Court  of  Appeal  or  a  High  Court  of  one 
of  the  Contracting  States,  or  a  lawyer  practising  before  a  similar 
Court,  or  lastly,  a  professor  of  law  at  one  of  the  higher  teaching 
centres  of  those  countries. 

Art.  27.  For  all  notices  to  be  served,  in  particular  on  the  parties, 
witnesses,  or  experts,  the  Court  may  apply  direct  to  the  Govern- 
ment of  the  State  on  whose  territory  the  service  is  to  be  carried 
out.  The  same  rule  applies  in  the  case  of  steps  being  taken  to  pro- 
cure evidence. 

The  requests  for  this  purpose  are  to  be  executed  so  far  as  the 
means  at  the  disposal  of  the  Pow-er  applied  to  under  its  municipal 
law  allow.  They  cannot  be  rejected  unless  the  Power  in  question 
considers  them  calculated  to  impair  its  sovereign  rights  or  its  safety. 
If  the  request  is  complied  with,  the  fees  charged  must  only  com- 
prise the  expenses  actually  incurred. 


HAGUE   CONVENTIONS.  559 

The  Court  is  equally  entitled  to  act  through  the  Power  on  whose 
territory  it  sits. 

Notices  to  be  given  to  parties  in  the  place  where  the  Court  sits 
may  be  served  through  the  International  Bureau. 

PART  III.— PROCEDURE  IN  THE  INTERNATIONAL  PRIZE 

COURT. 

Art.  28.  An  appeal  to  the  International  Prize  Court  is  entered  by 
means  of  a  written  declaration  made  in  the  National  Court  which 
has  already  dealt  with  the  case  or  addressed  to  the  International 
Bureau;   in  the  latter  case  the  appeal  can  be  entered  by  telegram. 

The  period  within  which  the  appeal  must  be  entered  is  fixed  at 
120  days,  counting  from  the  day  the  decision  is  delivered  or  notified 
(Article  2,  paragraph  2). 

Art.  29.  If  the  notice,  of  appeal  is  entered  in  the  National  Court, 
this  Court,  without  considering  the  question  whether  the  appeal  was 
entered  in  due  time,  will  transmit  within  seven  days  the  record  of 
the  case  to  the  International  Bureau. 

If  the  notice  of  the  appeal  is  sent  to  the  International  Bureau, 
the  Bureau  will  immediately  inform  the  National  Court,  when  pos- 
sible by  telegraph.  The  latter  will  transmit  the  record  as  provided 
in  the  preceding  paragraph. 

When  the  appeal  is  brought  by  a  neutral  individual  the  Interna- 
tional Bureau  at  once  informs  by  telegraph  the  individual's  Gov- 
ernment, in  order  to  enable  it  to  enforce  the  rights  it  enjoys  under 
Article  4,  paragraph  2. 

Art.  30.  In  the  case  provided  for  in  Article  6,  paragraph  2,  the 
notice  of  appeal  can  be  addressed  to  the  International  Bureau  only. 
It  must  be  entered  within  thirty  days  of  the  expiration  of  the  pe- 
riod of  two  years. 

Art.  31.  If  the  appellant  does  not  enter  his  appeal  within  the 
period  laid  down  in  Articles  28  or  30,  it  shall  be  rejected  without 
discussion. 

Provided  that  he  can  show  that  he  was  prevented  from  so  doing 
by  force  majeure,  and  that  the  appeal  w^as  entered  within  sixty 
days  after  the  circumstances  which  prevented  him  entering  it  before 
had  ceased  to  operate,  the  Court  can,  after  hearing  the  respondent, 
grant  relief  from  the  effect  of  the  above  provision. 

Art.  32.  If  the  appeal  is  entered  in  time,  a  certified  copy  of  the 
notice  of  appeal  is  forthwith  officially  transmitted  by  the  Court  to 
the  respondent. 

Art.  33.  If,  in  addition  to  the  parties  who  are  before  the  Court, 
there  are  other  parties  concerned  who  are  entitled  to  appeal,  or  if  in 
the  case  referred  to  in  Article  29,  paragraph  3,  the  Government  who 
has  received  notice  of  an  appeal  has  not  announced  its  decision,  the 
Court  will  await  before  dealing  with  the  case  the  expiration  of  the 
period  laid  down  in  Articles  28  or  30. 


560  APPENDIX    IV. 

Art.  34.  The  procedure  before  the  International  Court  Includes 
two  distinct  parts:    the  written  pleadings  and  oral  discussions. 

The  written  pleadings  consist  of  the  deposit  and  exchange  of 
cases,  counter-cases,  and,  if  necessary,  of  replies,  of  which  the  order 
is  fixed  by  the  Court,  as  also  the  periods  within  which  they  must 
be  delivered.  The  parties  annex  thereto  all  papers  and  documents 
of  which  they  intend  to  make  use. 

A  certified  copy  of  every  document  produced  by  one  party  must  be 
communicated  to  the  other  party  through  the  medium  of  the  Court. 

Art.  35.  After  the  close  of  the  pleadings,  a  public  sitting  is  held 
on  a  day  fixed  by  the  Court. 

At  this  sitting  the  parties  state  their  view  of  the  case  both  as  to 
the  law  and  as  to  the  facts. 

The  Court  may,  at  any  stage  of  the  proceedings,  suspend  speeches 
of  counsel,  either  at  the  request  of  one  of  the  parties,  or  on  their 
oTvn  initiative,  in  order  that  supplementai-y  evidence  may  be  ob- 
tained. 

Art.  36.  The  International  Court  may  order  the  supplementary 
evidence  to  be  fallen  either  in  the  manner  provided  by  Article  27,  or 
before  itself,  or  one  or  more  of  the  members  of  the  Court,  provided 
that  this  can  be  done  without  resort  to  compulsion  or  the  use  of 
threats. 

If  steps  are  to  be  taken  for  the  purpose  of  obtaining  evidence  by 
.members  of  the  Court  outside  the  territory  where  it  is  sitting,  the 
consent  of  the  foreign  Government  must  be  obtained. 

Art.  37.  The  parties  are  summoned  to  take  part  in  all  stages  of 
the  proceedings  and  receive  certified  copies  of  the  Minutes. 

Art.  38.  The  discussions  are  under  the  control  of  the  President  or 
Vice-President,  or,  in  case  they  are  absent  or  cannot  act,  of  the  sen- 
ior Judge  present. 

The  Judge  appointed  by  a  belligerent  party  cannot  preside. 

Art.  39.  The  discussions  take  place  in  public,  subject  to  the  right 
of  a  Government  who  is  a  party  to  the  case  to  demand  that  they  be 
held  in  private. 

Minutes  are  taken  of  these  discussions  and  signed  by  the  President 
and  Registrar,  and  these  Minutes  alone  have  an  authentic  character. 

Art.  40.  If  a  party  does  not  appear,  despite  the  fact  that  he  has 
been  duly  cited,  or  if  a  party  fails  to  comply  with  some  step  within 
the  period  fixed  by  the  Court,  the  case  proceeds  without  that  party, 
and  the  Court  gives  judgment  in  accordance  with  the  material  at 
its  disposal. 

Art.  41.  The  Court  officially  notifies  to  the  parties  Decrees  or  de- 
cisions made  in  their  absence. 

Art.  42.  The  Court  takes  into  consideration  in  arriving  at  its  de- 
cision all  the  facts,  evidence,  and  oral  statements. 

Art.  43.  The  Court  considers  its  decision  in  private  and  the  pro- 
ceedings are  secret. 


HAGUE   CONVENTIONS.  561 

All  questions  are  decided  by  a  majority  of  the  Judges  present.  If 
the  number  of  Judges  is  even  and  equally  divided,  the  vote  of  the 
jimior  Judge  in  the  order  of  precedence  laid  down  In  Article  12,  par- 
agraph 1,  is  not  counted. 

Art.  44.  The  judgment  of  the  Court  must  give  the  reasons  on 
which  it  is  based.  It  contains  the  names  of  the  Judges  taking  part 
in  it,  and  also  of  the  Assessors,  if  any;  it  is  signed  by  the  President 
and  Registrar. 

Art.  45.  The  sentence  is  pronounced  In  public  sitting,  the  parties 
concerned  being  present  or  duly  summoned  to  attend;  the  sentence 
is  officially  communicated  to  the  parties. 

When  this  communication  has  been  made,  the  Court  transmits  to 
the  National  Prize  Court  the  record  of  the  case,  together  with  copies 
of  the  various  decisions  arrived  at  and  of  the  Minutes  of  the  pro- 
ceedings. 

Art.  46.  Each  party  pays  its  cwn  costs. 

The  party  against  whom  the  Court  decides  bears,  in  addition,  the 
costs  of  the  trial,  and  also  pays  1  per  cent,  of  the  value  of  the  sub- 
ject-matter of  the  case  as  a  contribution  to  the  general  expenses  of 
the  International  Court.  The  amount  of  these  payments  is  fixed  in 
the  judgment  of  the  Court. 

If  the  appeal  is  brought  by  an  individual,  he  will  furnish  the  In- 
ternational Bureau  with  security  to  an  amount  fixed  by  the  Court, 
for  the  purpose  of  guaranteeing  eventual  fulfillment  of  the  two  ob- 
ligations mentioned  in  the  preceding  paragraph.  The  Court  is  en- 
titled to  postpone  the  opening  of  the  proceedings  until  the  security 
has  been  furnished. 

Art.  47.  The  general  expenses  of  the  International  Prize  Court 
are  borne  by  the  Contracting  Powers  in  proportion  to  their  share  in 
the  composition  of  the  Court  as  laid  down  in  Article  15  and  in  the 
annexed  Table.  The  appointment  of  Deputy  Judges  does  not  involve 
any  contribution. 

The  Administrative  Council  applies  to  the  Powers  for  the  funds 
requisite  for  the  working  of  the  Court. 

Art.  48.  When  the  Court  is  not  sitting  the  duties  conferred  upon 
it  by  Article  32,  Article  34,  paragraphs  2  and  3,  Article  35,  para- 
graph 1,  and  Article  46,  paragraph  3,  are  discharged  by  a  delegation 
of  three  Judges  appointed  by  the  Court.  This  delegation  decides  by 
a  majority  of  votes. 

Art.  49.  The  Court  itself  draws  up  Its  own  rules  of  procedure, 
which  must  be  communicated  to  the  Contracting  Powers. 

It  will  meet  to  elaborate  these  rules  within  a  year  of  the  ratifica- 
tion of  the  present  Convention. 

Art.  50.  The  Court  may  propose  modifications  in  the  provisions 
of  the  present  Convention  concerning  procedure.  These  proposals 
are  communicated,  through  the  medium  of  the  Netherland  Govern- 
ment, to  the  Contracting  Powers,  which  will  consider  together  as  to 
the  measures  to  be  taken. 

WiLS.lNT.L.— 36 


562 


APPENDIX    IV. 


PART  IV.— FINAL  PROVISIONS. 

Art.  51.  The  present  Convention  does  not  apply  as  of  right  except 
when  the  belligerent  Powers  are  all  parties  to  the  Convention. 

It  is  further  fully  understood  that  an  appeal  to  the  International 
Prize  Court  can  only  be  brought  by  a  Contracting  Power  or  the 
subject  or  citizen  of  a  Contracting  Power. 

In  the  cases  mentioned  in  Article  5,  the  appeal  is  only  admitted 
when  both  the  owner  and  the  person  entitled  to  represent  him  are 
equally  Contracting  Powers  or  the  subjects  or  citizens  of  Contracting 
Powers. 

[Articles  providing  for  ratification  follow.] 


Annex  to  Article  XV. 

Distribution  of  Judges  and  Deputy  Judges  by  Countries  for 
Bach  Year  of  the  Period  of  Six  Year^. 


Judges. 


Deputy  Judges. 


First  Year. 


Argentina  .. . 
Columbia  ... 

Spain  

Greece , 

Norway 

Netherlands 
Turkey  


Paraguay. 

Bolivia. 

Spain. 

Roumania. 

Sweden. 

Belgium. 

Persia. 


Third  Year. 


Brazil 

China 

Spain  

Netherlands 
Roumania  .. 

Sweden  

Venezuela  .. 


Santo  Domingo. 

Turkey. 

Portugal. 

Switzerland. 

Greece. 

Denmark. 

Haiti. 


Fifth  Year. 


Belgium  . 
Bulgaria 

Chile 

Denmark 
Mexico  ... 
Persia  .. . 
Portugal  . 


Netherlands. 

Montenegro. 

Nicaragua. 

Norway. 

Cuba. 

China. 

Spain. 


Judges. 


Deputy  Judges. 


Second  Year. 


Argentina  ... 

Spain  

Greece 

Norway 

Netherlands 

Turkey  

Uruguay  .... 


Panama. 

Spain. 

Roumania. 

Sweden. 

Belgium. 

Luxemburg. 

Costa  Rica. 


Fourth  Year. 


Brazil Guatemala. 

China Turkey. 

Spain Portugal. 

Peru  Honduras. 

Roumania  Greece. 

Sweden  -Denmark. 

Switzerland '  Netherlands. 


Sixth  Year. 


Belgium  . 

Chile 

Denmark 
Mexico  .. . 
Portugal  . 
Servia  ... 
Siam 


Netherlands. 

Salvador. 

Norway. 

Ecuador. 

Spain. 

Bulgaria. 

China. 


HAGUE   CONVENTIONS.  563 


CONVENTION  CONCERNING  THE  RIGHTS  AND 

DUTIES  OF  NEUTRAL  POWERS  IN 

NAVAL  WAR. 


[Names  of  States.] 

With  a  view  to  harmonizing  the  divergent  views  which,  in  the  event 
of  naval  war.  are  still  held  on  the  relations  between  neutral  Powers 
and  belligerent  Powers,  and  to  anticipating  the  difficulties  to  which 
such  divergence  of  views  might  give  rise. 

Seeing  that,  even  if  it  is  not  possible  at  present  to  concert  measures 
applicable  to  all  circumstances  which  may  in  practice  occur,  it  is 
nevertheless  undeniably  advantageous  to  frame,  as  far  as  possible, 
rules  of  general  application  to  meet  the  case  where  war  has  unfortu- 
nately broken  out ; 

Seeing  that,  in  cases  not  covered  by  the  present  Convention,  it  is 
expedient  to  take  into  consideration  the  general  principles  of  the  law 
of  nations ; 

Seeing  that  it  is  desirable  that  the  Powers  should  issue  detailed: 
enactments  to  regulate  the  results  of  the  attitude  of  neutrality  when 
adopted  by  them; 

Seeing  that  it  is.  for  neutral  Powers,  an  admitted  duty  to  apply 
these  rules  impartially  to  the  several  belligerents ; 

Seeing  that,  in  this  category  of  ideas  these  rules  should  not,  in 
principle,  be  altered,  in  the  course  of  the  war,  by  a  neutral  Power, 
except  in  a  case  where  experience  has  shown  the  necessity  for  such 
change  for  the  protection  of  the  rights  of  that  Power ; 

Have  agreed  to  observe  the  following  common  rules,  which  cannot 
however  modify  provisions  laid  down  in  existing  general  Treaties,  and 
have  appointed  as  their  Plenipotentiaries,  namely: 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  provisions: 

Article  1.  Belligerents  are  bound  to  respect  the  sovereign  rights  of 
neutral  Powers  and  to  abstain,  in  neutral  territory  or  neutral  waters, 
from  any  act  which  would,  if  knowingly  permitted  by  any  Power,  con- 
stitute a  violation  of  neutrality. 

Art.  2.  Any  act  of  hostility,  including  capture  and  the  exercise  of 
the  right  of  search,  committed  by  belligerent  war-ships  in  the  terri- 
torial waters  of  a  neutral  Power,  constitutes  a  violation  of  neutrality 
and  is  strictly  forbidden. 

Art.  3.  When  a  ship  has  been  captured  in  the  territorial  waters 
of  a  neutral  Power,  this  Power  must  employ,  if  the  prize  is  still 


564  APPENDIX   IV. 

within  its  jurisdiction,  the  means  at  Its  disposal  to  release  the  prize 
with  its  officers  and  crew,  and  to  intern  the  prize  crew. 

If  the  prize  is  not  in  the  jurisdiction  of  the  neutral  Power,  the  cap- 
tor Government,  on  the  demand  of  that  Power,  must  liberate  the  prize 
with  its  officers  and  crew. 

Art.  4.  A  Prize  Court  cannot  he  set  up  by  a  belligerent  on  neu- 
tral territory  or  on  a  vessel  in  neutral  waters. 

Art.  5.  Belligerents  are  forbidden  to  use  neutral  ports  and  waters 
as  a  base  of  naval  operations  against  their  adversaries,  and  in  par- 
ticular to  erect  wireless  telegraphy  stations  or  any  apparatus  for  the 
purpose  of  communicating  with  the  belligerent  forces  on  laud  or  sea. 

Art.  6.  The  supply,  in  any  manner,  directly  or  indirectly,  by  a 
neutral  Power  to  a  belligerent  Power,  of  war-ships,  ammunition,  or 
war  material  of  any  kind  whatever,  is  forbidden. 

Art.  7.  A  neutral  Power  is  not  bound  to  prevent  the  export  or 
ti'ansit,  for  the  use  of  either  belligerent,  of  arms,  ammunitions,  or,  in 
general,  of  anything  which  could  he  of  use  to  an  army  or  fleet. 

Art.  8.  A  neutral  Government  is  bound  to  employ  the  means  at 
its  disposal  to  prevent  the  fitting  out  or  arming  of  any  vessel  within 
its  jurisdiction  which  it  has  reason  to  believe  is  intended  to  cruise,  or 
engage  in  hostile  operations,  against  a  Power  with  which  that  Govern- 
ment is  at  peace.  It  is  also  bound  to  display  the  same  vigilance  to 
prevent  the  departure  from  its  jurisdiction  of  any  vessel  intended  to 
cruise,  or  engage  in  hostile  operations,  which  had  been  adapted  entire- 
ly or  partly  within  the  said  jurisdiction  for  use  iu  "war. 

Art.  9.  A  neutral  Power  must  apply  impartially  to  the  two  bellig- 
erents the  conditions,  restrictions,  or  prohibitions  made  by  it  in  re- 
gard to  the  admission  into  its  ports,  roadsteads,  or  territorial  waters, 
of  belligerent  war-ships  or  of  their  prizes. 

Nevertheless,  a  neutral  Power  may  forbid  a  belligerent  vessel  which 
has  failed  to  conform  to  the  orders  and  regulations  made  by  it,  or 
which  has  violated  neutrality,  to  enter  its  ports  or  roadsteads. 

Art.  10.  The  neutrality  of  a  Power  is  not  affected  by  the  mere 
passage  through  its  territorial  waters  of  war-ships  or  prizes  belonging 
to  belligerents. 

Art.  11.  A  neutral  Power  may  allow  belligerent  war-ships  to  em- 
ploy its  licensed  pilots. 

Art.  12.  In  the  absence  of  special  provisions  to  the  contrary  in  the 
legislation  of  a  neutral  Power,  belligerent  war-ships  are  not  per- 
mitted to  remain  in  the  ports,  roadsteads,  or  territorial  waters  of  the 
said  Power  for  more  than  twenty-four  hours,  except  in  the  cases  cov- 
ered by  the  present  Convention. 

Art.  13.  If  a  Pov/er  which  has  been  informed  of  the  outbreak  of 
hostilities  learns  that  a  belligerent  war-ship  is  in  one  of  its  ports  or 
roadsteads,  or  in  its  territorial  waters,  it  must  notify  the  said  ship  to 
depart  within  twenty-four  hours  or  within  the  time  prescribed  by 
local  regulations. 


HAGUE   CONVENTIONS.  5G5 

Art.  14.  A  belligerent  war-ship  may  not  prolong  its  stay  in  a  neu- 
tral port  beyond  the  permissible  time  except  on  account  of  damage 
or  stress  of  weather.  It  must  depart  as  soon  as  the  cause  of  the  de- 
lay is  at  an  end. 

The  regulations  as  to  the  question  of  the  length  of  time  which 
these  vessels  may  remain  in  neutral  ports,  roadsteads,  or  waters,  do 
not  apply  to  war-ships  devoted  exclusively  to  religious,  scientilie.  or 
philanthropic  purposes. 

Art.  15.  In  the  absence  of  special  provisions  to  the  contrary  in  the 
legislation  of  a  neutral  Power,  the  maximum  number  of  war-ships 
belonging  to  a  belligerent  which  may  be  in  one  of  the  ports  or  road- 
steads of  that  Power  simultaneously  shall  be  three. 

Art.  16.  When  war-ships  belonging  to  both  belligerents  are  pres- 
ent simultaneously  in  a  neutral  port  or  roadstead,  a  period  of  not 
less  than  twenty-four  hours  must  elapse  between  the  departure  of 
the  ship  belonging  to  one  belligerent  and  the  departure  of  the  ship 
belonging  to  the  other. 

The  order  of  departure  is  determined  by  the  order  of  arrival,  unless 
the  ship  which  arrived  first  is  so  circumstanced  that  an  extension  of 
its  stay  is  permissible. 

A  belligerent  war-ship  may  not  leave  a  neutral  port  or  roadstead 
until  twenty-four  hours  after  the  departure  of  a  merchant-ship  flying 
the  flag  of  its  adversary. 

Art.  17.  In  neutral  ports  and  roadsteads  belligerent  war-ships  may 
only  carry  out  such  repairs  as  are  absolutely  necessary  to  render  them 
seaworthy,  and  may  not  add  in  any  manner  whatsoever  to  their  fight- 
ing force.  The  local  authorities  of  the  neutral  Power  shall  decide 
what  repairs  are  necessary,  and  these  must  be  carried  out  with  the 
least  possible  delay. 

Art.  18.  Belligerent  war-ships  may  not  make  use  of  neutral  ports, 
roadsteads,  or  territorial  waters  for  replenishing  or  increasing  their 
supplies  of  war  material  or  their  armament,  or  for  completing  their 
crews. 

Art.  19.  Belligerent  war-ships  may  only  revictual  in  neutral  ports 
or  roadsteads  to  bring  up  their  supplies  to  the  peace  standard. 

Similarly  these  vessels  may  only  ship  sufficient  fuel  to  enable  them 
to  reach  the  nearest  port  in  their  own  country.  They  may,  on  the 
other  hand,  fill  up  their  bunkers  built  to  carry  fuel,  when  in  neutral 
countries  which  have  adopted  this  method  of  determining  the  amount 
of  fuel  to  be  supplied. 

If,  in  accordance  with  the  law  of  the  neutral  Power,  the  ships  are 
not  supplied  with  coal  within  twenty-four  hours  of  their  arrival,  the 
permissible  duration  of  their  stay  is  extended  by  twenty-four  hours. 

Art.  20.  Belligerent  war-ships  which  have  shipped  fuel  in  a  port 
belonging  to  a  neutral  Power  may  not  within  the  succeeding  three 
months  replenish  their  supply  in  a  port  of  the  same  Power. 


566  APPENDIX   IV. 

Art.  21.  A  prize  may  ouly  be  brought  into  a  neutral  port  on  ac- 
count of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions. 

It  must  leave  as  soon  as  the  circumstances  which  justified  its  en- 
try are  at  an  end.  If  it  does  not,  the  neutral  Power  must  order  it 
to  leave  at  once;  should  it  fail  to  obey,  the  neutral  Power  must 
employ  the  means  at  its  disposal  to  i-elease  it  with  its  olhcers  and 
crew  and  to  intern  the  prize  crew. 

Art.  22.  A  neutral  Power  must  similarly,  release  a  prize  brought 
into  one  of  its  ports  under  circumstances  other  than  those  referred  to 
in  Article  21. 

Art.  23.  A  neutral  Power  may  allow  prizes  to  enter  its  ports  and 
roadsteads,  whether  under  convoy  or  not,  when  they  are  brought 
there  to  be  sequestrated  pending  the  decision  of  a  Prize  Court.  It 
may  have  the  prize  taken  to  another  of  its  ports. 

If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may  go  on 
board  the  convoying  ship. 

If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at  liberty. 

Art.  24.  If  notwithstanding  the  notification  of  the  neutral  Power, 
a  belligerent  ship  of  war  does  not  leave  a  port  where  it  is  not  entitled 
to  remain,  the  neutral  Power  is  entitled  to  take  such  measures  as  it 
considers  necessary  to  render  the  ship  incapable  of  taking  the  sea 
during  the  war,  and  the  commanding  officer  of  the  ship  must  facili- 
tate the  execution  of  such  measures. 

When  a  belligerent  ship  is  detained  by  a  neutral  Power,  the  officers 
and  crew  are   likewise  detained. 

The  officers  and  crew  thus  detained  may  be  left  in  the  ship  or  kept 
either  on  another  vessel  or  on  land,  and  may  be  subjected  to  the 
measures  of  restriction  which  it  may  appear  necessary  to  impose  upon 
them.  A  sufficient  number  of  men  for  looking  after  the  vessel  must, 
however,  be  always  left  on  board. 

The  officers  may  be  left  at  liberty  on  giving  their  word  not  to 
quit  the  neutral  territory  without  permission. 

Art.  25.  A  neutral  Power  is  bound  to  exercise  such  surveillance 
as  the  means  at  its  disposal  allow  to  prevent  any  violation  of  the  pro- 
visions of  the  above  Articles  occurring  in  its  ports  or  roadsteads  or 
in  its  waters. 

Art.  26.  The  exercise  by  a  neutral  Power  of  the  rights  laid  down  in 
the  present  Convention  can  under  no  circumstances  be  considered  as 
an  unfriendly  act  by  one  or  other  belligerent  who  has  accepted  the 
Article  relating  thereto. 

Art.  27.  The  Contracting  Powers  shall  communicate  to  each  other 
in  due  course  all  Laws,  Proclamations,  and  other  enactments  regulat- 
ing in  their  respective  countries  the  status  of  belligerent  war-ships 
in  their  ports  and  waters,  by  means  of  a  communication  addressed  to 
the  Government  of  the  Netherlands  and  forwarded  Immediately  by 
that  Government  to  the  other  Contracting  Powers. 


HAGUE   CONVENTIONS.  567 

Art.  28.  The  provisions  of  the  present  Convention  do  not  apply 
except  to  the  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

[Articles  providing  for  ratification  follovs^.] 

[Reservation  by  the  United  States.] 

Resolved  (two-thirds  of  the  Senators  present  concurring  therein), 
That  the  Senate  advise  and  consent  to  the  adherence  of  the  United 
States  to  a  convention  adopted  by  the  Second  International  Peace 
Conference  held  at  The  Hague  from  June  15  to  October  18,  1907,  con- 
cerning the  rights  and  duties  of  neutral  powers  in  naval  war,  re- 
serving and  excluding,  however,  Article  23  thereof,  which,  is  in  the 
following  words: 

"A  neutral  power  may  allow  prizes  to  enter  its  ports  and  road- 
steads, whether  under  convoy  or  not,  when  they  are  brought  there  to 
be  sequestrated  pending  the  decision  of  a  prize  court.  It  may  have 
the  prize  taken  to  another  of  its  ports. 

"If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may  go  on 
board  the  convoying  ship. 

"If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at  lib- 
erty." 

Resolved,  further,  That  the  United  States  adheres  to  this  conven- 
tion with  the  understanding  that  the  last  clause  of  Article  3  implies 
the  duty  of  a  neutral  power  to  make  the  demand  therein  mentioned 
for  the  return  of  a  ship  captured  within  the  neutral  jurisdiction  and 
no  longer  within  that  jurisdiction. 


568  APPENDIX    IV. 

DRAFT  CONVENTION  RELATIVE  TO  THE  CREA- 
TION OF  A  COURT  OF  ARBITRAL  JUSTICE. 


TITLE  I.— CONSTITUTION  OF  THE  COURT  OF  ARBITRAL 
JUSTICE. 

Article  I.  With  a  view  to  promoting  the  cause  of  arliitration,  the 
Contracting  Powers  agree  to  constitute,  without  altering  the  status 
of  the  Permanent  Court  of  Arbitration,  a  Court  of  Arbitral  Jus- 
tice, of  free  and  easy  access,  composed  of  Judges  representing  the 
various  juridical  systems  of  the  world,  and  capable  of  insuring  con- 
tinuity in  arbitral  jurisprudence. 

Art.  II.  The  Court  of  Arbitral  Justice  is  composed  of  Judges  and 
Deputy  Judges  chosen  from  persons  of  the  highest  moral  reputation, 
and  all  fulfilling  conditions  qualifying  them,  in  their  respective  coun- 
tries, to  occupy  high  legal  posts,  or  be  jurists  of  recognized  compe- 
tence in  matters  of  international  law. 

The  Judges  and  Deputy  Judges  of  the  Court  are  appointed,  as 
far  as  possible,  from  the  members  of  the  Permanent  Court  of  Ar- 
bitration. The  appointment  shall  be  made  within  the  six  months 
after  the  ratification  of  the  present  Convention. 

Art.  III.  The  Judges  and  Deputy  Judges  are  appointed  for  a  pe- 
riod of  twelve  years,  reckoned  from  the  date  on  which  the  appoint- 
ment is  notified  to  the  Administrative  Council  created  by  the  Con- 
vention for  the  Pacific  Settlement  of  International  Disputes.  Their 
appointments  can  be  renewed. 

Should  a  Judge  or  Deputy  Judge  die  or  resign,  the  vacancy  is  filled 
in  the  manner  in  t\  hich  his  appointment  was  made.  In  this  case, 
the  appointment  is  made  for  a  fresh  period  of  twelve  years. 

Art.  IV.  The  Judges  of  the  Court  of  Arbitral  Justice  are  equal 
and  rank  according  to  the  date  on  which  their  appointment  was 
notified.  The  Jijdge  who  is  senior  in  point  of  age  takes  precedence 
when  the  date  of  notification  is  the  same. 

The  Deputy  Judges  are  assimilated  in  the  exercise  of  their  func- 
tions to  the  Judges.     They  rank,  however,  after  the  latter. 

Art.  V.  The  Judges  enjoy  diplomatic  privileges  and  immunities  in 
the  exercise  of  their  duties  and  when  outside  their  own  country. 

Before  taking  their  seat,  the  Judges  and  Deputy  Judges  must 
swear,  before  the  Administrative  Council,  or  make  a  solemn  affirma- 
tion to  exercise  their  functions  impartially  and  conscientiously. 

Art.  VI.  The  Court  annually  nominates  three  Judges  to  form  a 
special  Delegation  and  three  more  to  replace  them  if  the  former 
are  unable  to  act.    They  may  be  re-elected.     They  are  balloted  for. 


HAGUE   CONVENTIONS.  569 

The  persons  who  secure  the  largest  number  of  votes  are  considered 
elected.  The  Delegation  itself  elects  its  President,  who,  In  default 
of  a  majority,  is  appointed  by  lot. 

A  member  of  the  Delegation  cannot  exercise  his  duties  when  the 
Power  which  appointed  him,  or  of  which  he  is  a  national,  is  one 
of  the  parties. 

The  members  of  the  Delegation  are  to  conclude  matters  submit- 
ted to  them,  even  if  the  period  for  which  they  have  been  appointed 
Judges  has  expired. 

Art.  VII.  A  Judge  may  not  exercise  his  judicial  functions  in  any 
case  in  which  be  has,  in  any  way  whatever,  taken  part  in  the  de- 
cision of  a  National  Tribunal,  of  a  Tribunal  of  Arbitration,  or  of  a 
Commission  of  Inquiry,  or  has  figured  in  the  suit  as  counsel  or  ad- 
vocate for  one  of  the  parties. 

A  Judge  cannot  act  as  agent  or  advocate  before  the  Court  of 
Arbitral  Justice  or  the  Pennanent  Court  of  Arbitration,  before  a 
Special  Tribunal  of  Arbitration  or  a  Commission  of  Inquiry,  nor 
act  therein  for  one  of  the  parties  in  any  capacity  whatsoever  so  long 
as  his  appointment  lasts. 

Art.  VIII.  The  Court  elects  its  President  and  Vice-President  by 
an  absolute  majority  of  the  votes  cast.  After  two  ballots,  the  elec- 
tion is  made  by  a  bare  majority  and,  in  case  the  votes  are  even,  by 
lot 

Art.  IX.  The  Judges  of  the  Court  of  Arbitral  Justice  receive  an 
annual  salary  of  6,000  Netherland  florins.  This  salary  is  paid  at 
the  end  of  each  half-year,  reckoned  from  the  date  on  which  the 
Court  meets  for  the  first  time. 

In  the  exercise  of  their  duties  during  the  sessions  or  in  the  special 
cases  covered  by  the  present  Convention,  they  receive  the  sum  of  100 
florins  per  diem.  They  are  further  entitled  to  receive  a  travelling 
allowance  fixed  in  accordance  with  regulations  existing  in  their  own 
country.  The  provisions  of  the  present  paragi-aph  are  applicable 
also  to  a  Deputy  Judge  when  acting  for  a  Judge. 

These  emoluments  are  included  in  the  general  expenses  of  the 
Court  dealt  with  in  Article  XXXI,  and  are  paid  through  the  Inter- 
national Bureau  created  by  the  Convention  for  the  Pacific  Settle- 
ment of  International  Disputes. 

Art.  X.  The  Judges  may  not  accept  from  their  own  Government 
or  from  that  of  any  otber  Power  any  remuneration  for  services  con- 
nected with  their  duties  in  their  capacity  of  members  of  the  Court. 

Art.  XI.  The  seat  of  the  Court  of  Arbitral  Justice  is  at  The 
Hague,  and  cannot  except  in  the  case  of  force  majeure  be  trans- 
ferred elsewhere. 

The  Delegation  may  choose,  with  the  assent  of  the  parties  con- 
cerned, another  site  for  its  meetings,  if  special  circumstances  ren- 
der such  a  step  necessary. 


570  APPENDIX   IV. 

Art  XII.  The  Administrative  Council  fulfllis  with  regard  to  the 
Court  of  Arbitral  Justice  the  same  functions  as  to  the  Permanent 
Court  of  Arbitration. 

Art.  XIII.  The  International  Bureau  acts  as  registry  to  the  Court 
of  Arbitral  Justice,  and  must  place  its  offices  and  stafiC  at  the  dis- 
posal of  the  Court.  It  has  charge  of  the  archives  and  carries  out 
the  administrative  work. 

The  Secretary-General  of  the  Bureau  discharges  the  functions  of 
Registrar. 

The  necessary  secretaries  to  assist  the  Registrar,  translators  and 
shorthand  writers  are  appointed  and  sworn  in  by  the  Court. 

Art.  XIV.  The  Court  meets  in  session  once  a  year.  The  session 
opens  the  third  Wednesday  in  June  and  lasts  until  all  the  business 
on  the  agenda  has  been  transacted. 

The  Court  does  not  meet  in  session  if  the  Delegation  considers 
that  such  meeting  is  unnecessary.  However,  when  a  Power  is  party 
in  a  case  actually  pending  before  the  Court,  the  pleadings  in  which 
are  closed,  or  about  to  be  closed,  it  may  insist  that  the  session  should 
be  held. 

When  necessary,  the  Delegation  may  summon  the  Court  in  ex- 
traordinary session. 

Art.  XY.  A  Report  of  the  doings  of  the  Court  shall  be  drawn  up 
every  year  by  the  Delegation.  This  Report  shall  be  forwarded  to 
the  Contracting  Powers  through  the  International  Bureau.  It  shall 
also  be  communicated  to  the  Judges  and  Deputy  Judges  of  the  Court. 

Art.  XVI.  The  Judges  and  Deputy  Judges,  members  of  the  Court 
of  Arbitral  Justice  can  also  exercise  the  functions  of  Judge  and 
Deputy  Judge  in  the  International  Prize  Court. 


TITLE  II.— COMPETENCY  AND  PROCEDURE. 

Art.  XVII.  The  Court  of  Arbitral  Justice  is  competent  to  deal 
with  all  cases  submitted  to  it,  in  virtue  either  of  a  general  under- 
taking to  have  recourse  to  arbitration  or  of  a  special  agreement. 

Art.  XVIII.  The  Delegation  is  competent — 

1.  To  decide  the  arbitrations  referred  to  in  the  preceding  Article, 
if  the  parties  concerned  are  agreed  that  the  summary  procedure, 
laid  down  in  Part  IV,  Chapter  IV,  of  the  Convention  for  the  Paciflc 
Settlement  of  International  Disputes  is  to  be  applied; 

2.  To  hold  an  inquiry  under  and  in  accordance  with  Part  III  of 
the  said  Convention,  in  so  far  as  the  Delegation  is  intrusted  with 
such  inquiry  by  the  parties  acting  in  common  agreement.  With  the 
assent  of  the  parties  concerned,  and  as  an  exception  to  Article  VII, 
paragraph  1,  the  members  of  the  Delegation  who  have  taken  part 
in  the  inquiry  may  sit  as  Judges,  if  the  case  in  dispute  is  submitted 
to  the  arbitration  of  the  Court  or  of  the  Delegation  itself. 


HAGUE   CONVENTIONS.  571 

Art.  XIX.  The  Delegation  is  also  competent  to  settle  the  Com- 
promis  referred  to  in  Article  LII  of  the  Convention  for  the  Pacific 
Settlement  of  International  Disputes  if  the  parties  are  agreed  to 
leave  it  to  the  Court. 

It  is  equally  competent  to  do  so,  even  when  the  request  is  only 
made  by  one  of  the  parties  concerned,  if  all  attempts  have  failed 
to  reach  an  understanding  through  the  diplomatic  channel,  in  the 
case  of — 

1.  A  dispute  covered  by  a  general  Treaty  of  Arbitration  concluded 
or-  renewed  after  the  present  Convention  has  come  into  force,  pro- 
viding for  a  Compromis  in  all  disputes,  and  not  either  explicitly  or 
implicitly  excluding  the  settlement  of  the  Compromis  from  the  com- 
petence of  the  Delegation.  Recourse  cannot,  however,  be  had  to 
the  Court  if  the  other  party  declares  that  in  its  opinion  the  dispute 
does  not  belong  to  the  category  of  questions  to  be  submitted  to  ob- 
ligatory arbitration,  unless  the  Treaty  of  Arbitration  confers  upon 
the  Arbitration  Tribunal  the  power  of  deciding  this  preliminary 
question. 

2.  A  dispute  arising  from  contract  debts  claimed  from  one  Power 
by  another  Power  as  due  to  its  nationals,  and  for  the  settlement 
of  which  the  offer  of  arbitration  has  been  accepted.  This  arx-ange- 
ment  is  not  applicable  if  acceptance  is  subject  to  the  condition  that 
the  Compromis  should  be  settled  in  some  other  way. 

Art.  XX.  Each  of  the  parties  concerned  may  nominate  a  Judge  of 
the  Court  to  take  part,  with  power  to  vote,  in  the  examination  of 
the  case  submitted  to  the  Delegation. 

If  the  Delegation  acts  as  a  Commission  of  Enquiry,  this  task  may 
be  intrusted  to  persons  other  than  the  Judges  of  the  Court.  The 
travelHng  expenses  and  remuneration  to  be  given  to  the  said  per- 
sons are  fixed  and  borne  by  the  Powers  appointing  them. 

Art.  XXI.  The  Conti-acting  Powers  only  may  have  access  to  the 
Court  of  Arbitral  Justice  set  up  by  the  present  Convention. 

Art.  XXII.  The  Court  of  Arbitral  Justice  follows  the  rules  of 
procedure  laid  down  in  the  Convention  for  the  Pacific  Settlement  of 
International  Disputes,  except  in  so  far  as  the  procedure  is  laid 
•down  in  the  present  Convention. 

Art.  XXIII.  The  Court  determines  what  language  it  will  itself 
use  and  what  languages  may  be  used  before  it. 

Art.  XXIV.  The  International  Bureau  serves  as  channel  for  all 
communications  to  be  made  to  the  Judges  during  the  interchange  of 
pleadings  provided  for  in  Article  LXIII,  paragraph  2,  of  the  Con- 
vention for  the  Pacific  Settlement  of  International  Disputes. 

Art.  XXV.  For  all  notices  to  be  served,  in  particular  on  the  par- 
ties, witnesses,  or  experts,  the  Court  may  apply  direct  to  the  Gov- 
ernment of  the  State  on  whose  territory  the  service  is  to  be  carried 
out.  The  same  rule  applies  in  the  case  of  steps  being  taken  to  pro- 
cure evidence. 


572  APPENDIX   IV. 

The  requests  addressed  for  this  purpose  can  only  be  rejected 
when  the  Power  applied  to  considers  them  likely  to  impair  its  sov- 
ereign rights  or  its  safety.  If  the  request  is  complied  with,  the  fees 
charged  must  only  comprise  the  expenses  actually  incurred. 

The  Court  is  equally  entitled  to  act  through  the  Power  on  whose 
territory  it  sits. 

Notices  to  be  given  to  parties  in  the  place  where  the  Court  sits 
may  be  served  through  the  International  Bureau. 

Art.  XXVI.  The  discussions  are  under  the  control  of  the  President 
or  Vice-President,  or,  in  case  they  are  absent  or  cannot  act,  of  the 
senior  Judge  present. 

The  .Judge  appointed  by  one  of  the  parties  cannot  preside. 

Art.  XXVII.  The  Court  considers  its  decisions  In  private,  and  the 
proceedings  remain  secret. 

All  decisions  are  arrived  at  by  a  majonty  of  the  Judges  present. 
If  the  number  of  Judges  is  even  and  equally  divided,  the  vote  of 
the  junior  Judge,  in  the  order  of  precedence  laid  down  in  Article 
I\,  paragraph  1,  is  not  counted. 

Art.  XXVIII.  The  judgments  of  the  Court  must  give  the  reasons 
on  which  they  are  based.  They  contain  the  names  of  the  Judges 
taking  part  in  them;  they  are  signed  by  the  President  and  by  the 
Registrar. 

Art.  XXIX.  Each  party  pays  its  own  costs  and  an  equal  share  of 
the  costs  of  the  trial. 

Art.  XXX.  The  provisions  of  Articles  XXI  to  XXIX  are  appli- 
cable by  analogy  to  the  procedure  before  the  Delegation. 

When  the  right  of  attaching  a  member  to  the  delegation  has  been 
exercised  by  one  of  the  parties  only,  the  vote  of  the  member  at- 
tached is  not  recorded  if  the  votes  are  evenly  divided. 

Art.  XXXI.  The  general  expenses  of  the  Court  are  borne  by  the 
Contracting  Powers. 

The  Administrative  Gouncil  applies  to  the  Powers  to  obtain  the 
funds  requisite  for  the  working  of  the  Court. 

Art.  XXXII.  The  Court  itself  draws  up  its  own  rules  of  proced- 
ure, which  must  be  communicated  to  the  Contracting  Powers. 

After  the  ratification  of  the  present  Convention  the  Court  shall 
meet  as  early  as  possible  in  order  to  elaborate  these  rules,  elect  the 
President  and  Vice-President,  and  appoint  the  members  of  the  Dele- 
gation. 

Art.  XXXIII.  The  Court  may  propose  modifications  in  the  provi- 
sions of  the  present  Convention  concerning  procedure.  These  pro- 
posals are  communicated  through  the  Netherland  Government  to 
the  Contracting  Powers,  which  will  consider  together  as  to  the  meas- 
ures to  be  taken. 


HAGUE   COJv'VBNTIONS.  573 


TITLE  III.— FINAL  PROVISIONS. 

Art.  XXXIV.  The  present  Convention  shall  be  ratified  as  soon  as 
possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  of  the  deposit  of  each  ratification  shall  be  drawn 
up,  of  which  a  duly  certified  copy  shall  be  sent  through  the  diplo- 
matic channel  to  all  the  Signatory  Powers. 

Art.  XXXV.  The  Convention  shall  come  into  force  six  months 
after  its  ratification. 

It  shall  remain  in  force  for  twelve  years,  and  shall  be  tacitly  re- 
newed for  periods  of  twelve  years,  unless  denounced. 

The  denunciation  must  be  notified,  at  least  two  years  before  the 
expiration  of  each  period,  to  the  Netherland  Government,  which 
will  inform  the  other  Powers. 

The  denunciation  shall  only  have  effect  in  regard  to  the  notifying 
Power.  The  Convention  shall  continue  in  force  as  far  as  the  other 
Powers  are  concerned. 


APPENDIX  V 

DECLARATION  OF  LONDON,  FEBRUARY  26,  1909 


[Translation.]  2 


DECLARATION  CONCERNING  THE  LAWS  OF 
NAVAL  WAR. 

His  Majesty  the  German  Emperor,  King  of  Prussia;  the  President 
of  the  United  States  of  America  ;  His  Majesty  the  Emperor  of  Austria. 
King  of  Bohemia,  &c.,  and  Apostolic  King  of  Hungary ;  His  Majesty 
the  King  of  Spain ;  the  President  of  the  French  Republic;  His  Majesty 
the  King  of  the  United  Kingdom  of  Great  Britain  and  Ireland  and  of 
the  British  Dominion  beyond  the  Seas,  Emperor  of  India ;  His  Maj- 
esty the  King  of  Italy;  His  Majesty  the  Emperor  of  Japan;  Her  Maj- 
esty the  Queen  of  the  Netherlands ;  His  Majesty  the  Emperor  of  All 
the  Russias ; 

Considering  the  invitation  which  the  British  Government  has  given 
to  various  Powers  to  meet  in  conference  in  order  to  determine  together 
as  to  what  are  the  generally  recognized  rules  of  international  law 
within  the  meaning  of  Article  7  of  the  Convention  of  18th  October, 
1907,  relative  to  the  establishment  of  an  International  Prize  Court; 

Recognizing  all  the  advantages  which,  in  the  unfortunate  event  of 
a  naval  war  an  agreement  as  to  said  rules  would  present,  both  as  re- 
gards peaceful  commerce,  and  as  regards  the  belligerents  and  their 
diplomatic  relations  with  neutral  Governments ; 

Considering  that  the  general  principles  of  international  law  are 
often  in  their  practical  application  the  subject  of  divergent  procedure  ; 

Animated  by  the  desire  to  insure  henceforward  a  greater  measure 
of  uniformity  in  this  respect ; 

Hoping  that  a  work  so  important  to  the  common  welfare  will  meet 
with   general  approval; 

Have  appointed  as  their  Plenipotentiaries,  that  is  to  say: 

[Names  of  Plenipotentiaries.] 

^Vho,  after  having  communicated  their  full  powers  found  in  good 
and  due  form,  have  agreed  to  make  the  present  Declaration: 

2The  official  text  of  this  Declaration  is  iu  the  French  language. 
WiLS.lKT.L,  (."74) 


DECLARATION   OF   LONDON,  FEBRUARY  2G,  1909.  575 


PRELIMINARY  PROVISION. 

The  Siguatory  Powers  are  agreed  that  the  rules  contained  In  the 
following  chapters  correspond  in  substance  with  the  generally  recog- 
nized principles  of  international  law. 

CHAPTER  I.— BLOCKADE  IN  TIME  OF  WAR. 

Article  1.  A  blockade  must  be  limited  to  the  ports  and  coasts 
belonging  to  or  occupied  by  the  enemy. 

Art.  2.  In  accordance  with  the  Declaration  of  Paris,  1856,  a  block- 
ade, in  order  to  be  binding,  must  be  effective— that  is  to  say,  it  must 
be  maintained  by  a  force  sufhcient  really  to  prevent  access  to  the  en- 
emy coast. 

Art.  3.  The  question  whether  a  blockade  is  effective  is  a  question 
of  fact. 

Art.  4.  A  blockade  is  not  regarded  as  raised  if  by  bad  weather 
the  blockading  forces  are  temporarily  driven  off. 

Art.  5.  A  blockade  must  be  applied  impartially  to  the  ships  of  all 
nations. 

Art.  6.  The  commander  of  a  blockading  force  may  grant  to  a  war- 
ship permission  to  enter,  and  subsequently  to  leave,  a  blockaded  port. 

Art.  7.  In  circumstances  of  distress,  acknowledged  by  an  author- 
ity of  the  blockading  forces,  a  neutral  vessel  may  enter  a  place  under 
blockade  and  subsequently  leave  it,  provided  that  she  has  neither 
discharged  nor  shipped  any  cargo. 

Art.  8.  A  blockade,  in  order  to  be  binding  must  be  declared  in 
accordance  with  Article  9,  and  notified  in  accordance  with  Articles 
11  and  16. 

Art.  9.  A  declaration  of  blockade  is  made  either  by  the  blockading 
Power  or  by  the  naval  authorities  acting  in  its  name. 

It  specifies — 

(1)  The  date  when  the  blockade  begins. 

(2)  The  geographical  limits  of  the  coast  blockaded. 

(3)  The  delay  to  be  allowed  to  neutral  vessels  for  departure. 

Art.  10.  If  the  blockading  Power,  or  the  naval  authorities  acting 
in  its  name,  do  not  establish  the  blockade  in  conformity  with  the  pro- 
visions, which,  in  accordance  with  Article  9  (1)  and  (2),  must  be  in- 
serted in  the  declaration  of  blockade,  the  declaration  is  void,  and  a 
new  declaration  is  necessary  in  order  to  make  the  blockade  operative. 

Art.  11.  A  declaration  of  blockade  is  notified — 

(1)  To  the  neutral  Powers,  by  the  blockading  Power  by  means  of  a 
communication  addressed  to  the  Governments  themselves,  or  to  their 
Representatives  accredited  to  it. 

(2)  To  the  local  authorities,  by  the  officer  commanding  the  block- 
ading force.  These  authorities  will,  on  their  part,  inform,  as  soon  as 
possible,  the  foreign  consuls  who  exercise  their  functions  in  the  port 
or  on  the  coast  blockaded. 


576  APPENDIX  V. 

Art.  12.  The  rules  relative  to  the  declaration  and  to  the  notifica- 
tion of  blockade  are  applicable  in  the  case  in  which  the  blockade  may 
have  been  extended,  or  may  have  been  re-established  after  having 
been  raised. 

Art.  13.  The  voluntary  raising  of  a  blockade,  as  also  any  limita- 
tion which  may  be  introduced,  must  be  notified  in  the  manner  pre- 
scribed by  Article  11. 

Art.  14.  The  liability  of  a  neutral  vessel  to  capture  for  breach  of 
blockade  is  contingent  on  her  knowledge,  actual  or  presumptive,  of 
the  blockade. 

Art.  15.  Failing  proof  to  the  contrary,  knowledge  of  the  blockade 
is  presumed  if  the  vessel  left  a  neutral  port  subsequently  to  the  noti- 
fication of  the  blockade  made  in  sufficient  time  to  the  Power  to  which 
such  port  belongs. 

Art.  16.  If  a  vessel  which  approaches  a  blockaded  port  does  not 
know,  or  cannot  be  presumed  to  know,  of  the  blockade,  the  notifica- 
tion must  be  made  to  the  vessel  itself  by  an  officer  of  one  of  the 
ships  of  the  blockading  force.  This  notification  must  be  entered  in 
the  ship's  log-book,  with  entry  of  the  day  and  hour,  as  also  of  the 
geographical  position  of  the  vessel  at  the  time. 

A  neutral  vessel  which  leaves  a  blockaded  port  must  be  allowed 
to  pass  free,  if  through  the  negligence  of  the  officer  commanding  the 
blockading  force,  no  declaration  of  blockade  has  been  notified  to  the 
local  authorities,  or,  if  in  the  declaration,  as  notified,  no  delay  has 
been  indicated. 

Art.  17.  The  seizure  of  neutral  vessels  for  violation  of  blockade 
may  be  made  only  within  the  radius  of  action  of  the  ships  of  war  as- 
signed to  maintain  an  effective  blockade. 

Art.  18.  The  blockading  forces  must  not  bar  access  to  the  ports 
or  to  the  coasts  of  neutrals. 

Art.  19.  Whatever  may  be  the  ulterior  destination  of  the  ship  or 
of  her  cargo,  the  evidence  of  violation  of  blockade  is  not  sufficiently 
conclusive  to  authorize  the  seizure  of  the  ship  if  she  is  at  the  time 
bound  toward  an  unblockaded  port. 

Art.  20.  A  vessel  which  in  violation  of  blockade  has  left  a  block- 
aded port  or  has  attempted  to  enter  the  port  is  liable  to  capture  so 
long  as  she  is  pursued  by  a  ship  of  the  blockading  force.  If  the  pur- 
suit is  abandoned,  or  if  the  blockade  is  raised,  her  capture  can  no 
longer  be  effected. 

Art.  21.  A  vessel  found  guilty  of  breach  of  blockade  is  liable  to 
condemnation.  The  cargo  is  also  liable  to  condemnation,  unless  it  is 
proved  that  at  the  time  the  goods  were  shipped  the  shipper  neither 
knew  nor  could  have  known  of  the  intention  to  violate  the  blockade. 

CHAPTER  II.— CONTRABAND  OF  WAR. 

Art.  22.  The  following  articles  and  materials  are,  without  notice, 
regarded  as  contraband,  under  the  name  of  absolute  contraband: 


DECLARATION   OF  LONDON,  FEBRUARY  26,  1909.  577 

1.  Arms  of  all  kinds,  including  arms  for  sporting  purposes,  and 
their   unassembled  distinctive  parts. 

2.  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their  unas- 
sembled distinctive  parts. 

3.  Powder  and  explosives  specially  adapted  for  use  in  war. 

4.  Gun  carriages,  caissons,  limbers,  military  wagons,  field  forges, 
and  their  unassembled  distinctive  parts. 

'5.  Clothing  and  equipment  of  a  distinctively  military  character. 

6.  All  kinds  of  harness  of  a  distinctively  military  character. 

7.  Saddle,  draught,  and  pack  animals  suitable  for  use  in  war. 

8.  Articles  of  camp  equipment  and  their  unassembled  distinctive 
parts. 

9.  Armor  plates. 

10.  War-ships  and  boats  and  their  unassembled  parts  specially  dis- 
tinctive as  suitable  for  use  only  on  a  vessel  of  war. 

11.  Implements  and  apparatus  made  exclusively  for  the  manufac- 
ture of  munitions  of  war,  for  the  manufacture  or  repair  of  arms  or  of 
military  material,  for  use  on  land  and  sea. 

Art.  23.  Articles  and  materials  which  are  exclusively  used  for  war 
may  be  added  to  the  list  of  absolute  contraband  by  means  of  a  notified 
declaration. 

The  notification  is  addressed  to  the  Governments  of  other  Powers 
or  to  their  Representatives  accredited  to  the  Power  which  makes  the 
declaration.  A  notification  made  after  the  opening  of  hostilities  is 
addressed  only  to  the  neutral  Powers. 

Art.  24.  The  following  articles  and  materials,  susceptible  of  use  in 
war  as  well  as  for  purposes  of  peace,  are  without  notice  regarded  as 
contraband  of  war,  under  the  name  of  conditional  contraband: 

(1)  Food. 

(2)  Forage  and  grain  suitable  for  feeding  animals. 

(3)  Clothing  and  fabrics  for  clothing,  boots  and  shoes,  suitable  for 
military  use. 

(4)  Gold  and  silver  in  coin  or  bullion ;  paper  money. 

(5)  Vehicles  of  all  kinds  available  for  use  in  war,  and  their  unas- 
sembled parts. 

(6)  Vessels,  craft,  and  boats  of  all  kinds,  floating  docks,  parts  of 
docks  as  also  their  unassembled  parts. 

(7)  Fixed  railway  material  and  rolling  stock,  and  material  for  tele- 
graphs, radio-telegraphs  and  telephones. 

(8)  Balloons  and  flying  machines  and  their  unassembled  distinctive 
parts  as  also  their  accessories,  articles  and  materials  distinctive  as 
intended  for  use  in  connection  with  balloons  or  flying  machines. 

(9)  Fuel ;  lubricants. 

(10)  Powder  and  explosives  which  are  not  specially  adapted  for  use 
in  war. 

(11)  Barbed  wire  as  also  the  implements  for  placing  and  cutting 
the  same. 

(12)  Horseshoes  and  horseshoeing  materials. 

WiLS.lNT.L.— 37 


578  APPENDIX   V. 

(13)  Harness  and  saddlery  material. 

(14)  Binocular  glasses,  tolescdpes,  chronometers,  and  all  kinds  of 
nautical  instruments. 

Art.  25.  Articles  and  materials  susceptible  of  use  in  war  as  well 
as  for  purposes  of  peace,  and  other  than  those  enumerated  in  Articles 
22  and  24,  may  be  added  to  the  list  of  conditional  contraband  by 
means  of  a  declaration  which  must  be  notified  in  the  manner  provided 
for  in  the  second  paragraph  of  Article  23. 

Art.  26.  If  a  Power  waives,  so  far  as  it  is  concerned,  the  right  to 
regard  as  contraband  of  war  articles  and  materials  which  are  com- 
prised in  any  of  the  classes  enumerated  in  Articles  22  and  24,  it 
shall  make  known  its  intention  by  a  declaration  notified  in  the  man- 
ner provided  for  in  the  second  paragraph  of  Article  23. 

Art.  27.  Articles  and  materials,  which  are  not  susceptible  of  use 
in  war,  are  not  to  be  declared  contraband  of  war. 

Art.  28.  The  following  articles  are  not  to  be  declared  contraband 
of  war: 

(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw  ma- 
terials of  the  textile  industries,  and  also  j-arns  of  the  same. 

(2)  Nuts  and  oil  seeds;    copra. 

.(3)  Rubber,  resins,  gums  and  lacs;    hops. 

(4)  Raw  hides,  horns,  bones,  and  ivory. 

(5)  Natural  and  artificial  manures,  including  nitrates  and  phos- 
phates for  agricultural  purposes. 

(6)  Metallic  ores. 

(7)  Earths,  clays,  lime,  chalk,  stone,  including  marble,  bricks, 
slates  and  tiles. 

(8)  Chinaware  and  glass. 

(9)  Paper  and  materials  prepared  for  its  manufacture. 

(10)  Soap,  paint  and  colors,  including  articles  exclusively  used  in 
their  manufacture,  and  varnishes. 

(11)  Bleaching  powder,  soda  ash,  caustic  soda,  salt  cake,  ammonia, 
sulphate  of  ammonia,  and  sulphate  of  copper. 

(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

(13)  Precious  stones,  semi-precious  stones,  pearls,  mother-of-pearl, 
and  coral. 

(14)  Clocks  and  w^atches,  other  than  chronometers. 

(15)  Fashion  and  fancy  goods. 

(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

(17)  Articles  of  household  furniture  and  decorations;  office  fur- 
niture and  accessories. 

Art.  29.  Neither  are  the  following  to  be  regarded  as  contraband 
of  war: 

(1)  Articles  and  materials  serving  exclusively  for  the  care  of  the 
sick  and  wounded.  They  may,  nevertheless,  in  case  of  urgent  mili- 
tary necessity  and  subject  to  the  payment  of  compensation,  be  re- 
quisitioned, if  their  destination  is  that  specified  in  Article  30. 


DECLARATION  OF  LONDON,  FEBRUARY  26, 1909.      579 

(2)  Articles  and  materials  intended  for  the  use  of  the  vessel  in 
which  they  are  found,  as  well  as  those  for  the  use  of  her  crew  and 
passengers  during  the  voyage. 

Art.  30.  Absolute  contraband  is  liable  to  capture  if  it  is  shown 
to  be  destined  to  territory  belonging  to  or  occupied  by  the  enemy, 
or  to  the  armed  forces  of  the  enemy.  It  is  immaterial  whether  the 
carriage  of  the  goods  is  direct  or  entails  either  transhipment  or 
transport  over  land. 

Art.  31.  Proof  of  the  destination  specified  in  Article  30  Is  com- 
plete in  the  following  cases: 

(1)  When  the  goods  are  documented  to  be  discharged  in  a  port  of 
the  enemy,  or  to  be  delivered  to  his  armed  forces. 

(2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when  she 
is  to  touch  at  a  port  of  the  enemy  or  to  join  his  armed  forces,  before 
arriving  at  the  neutral  port  for  which  the  goods  are  documented. 

Art.  32.  The  ship's  papers  are  complete  proof  of  the  voyage  of  a 
vessel  transporting  absolute  contraband,  unless  the  vessel  is  encoun- 
tered having  manifestly  deviated  from  the  route  which  she  ought  to 
follow  according  to  the  ship's  papers  and  being  unable  to  justify  by 
sufficient  reason  such  deviation. 

Art.  33.  Conditional  contraband  is  liable  to  capture  if  it  is  shown 
that  it  is  destined  for  the  use  of  the  armed  forces  or  of  a  government 
department  of  the  enemy  State,  unless  in  this  latter  case  the  circum- 
stances show  that  the  articles  cannot  in  fact  be  used  for  the  pur- 
poses of  the  war  in  progress.  This  latter  exception  does  not  apply 
to  a  consignment  coming  under  Article  24  (4). 

Art.  34.  There  is  presumption  of  the  destination  referred  to  in 
Article  33  if  the  consignment  is  addressed  to  enemy  authorities,  or 
to  a  merchant,  established  in  the  enemy  country,  and  when  it  is  well 
known  that  this  merchant  supplies  articles  and  material  of  this  kind 
to  the  enemy.  The  presumption  is  the  same  if  the  consignment  is 
destined  to  a  fortified  place  of  the  enemy,  or  to  another  place  serv- 
ing as  a  base  for  the  armed  forces  of  the  enemy;  this  presumption, 
however,  does  not  apply  to  the  merchant  vessel  herself  bound  for 
one  of  these  places  and  of  which  vessel  it  is  sought  to  show  the 
contraband  character. 

Failing  the  above  presumptions,  the  destination  is  presumed  inno- 
cent. 

The  presumptions  laid  down  in  this  Article  admit  proof  to  the 
contrary. 

Art.  35.  Conditional  contraband  is  not  liable  to  capture,  except 
when  on  board  a  vessel  bound  for  territory  belonging  to  or  occu- 
pied by  the  enemy,  or  for  the  armed  forces  of  the  enemy,  and  is  not 
to  be  discharged  at  an  intervening  neutral  port. 

The  ship's  papers  are  conclusive  proof  of  the  voyage  of  the  vessel 
as  also  of  the  port  of  discharge  of  the  goods,  unless  the  vessel  is 
encountered  having  manifestly  deviated  from  the  route  which  she 


580  APPENDIX   V. 

ought  to  follow  according  to  the  ship's  papers  and  being  unable  to 
justify  by  sufficient  reason  such  deviation. 

Art.  36.  Notwithstanding  the  provisions  of  Article  3."),  if  the  terri- 
tory of  the  enemy  has  no  seaboard,  conditional  contraband  is  liable 
to  capture  if  it  is  shown  that  it  has  the  destination  referred  to  in 
Article  33. 

Art.  37.  A  vessel  carrying  articles  liable  to  capture  as  absolute  or 
conditional  contraband  may  be  captured  on  the  high  seas  or  in  the 
territorial  waters  of  the  belligerents  throughout  the  whole  course  of 
her  voyage,  even  if  she  has  the  intention  to  touch  at  a  port  of  call 
before  reaching  the  hostile  destination. 

Art.  38.  A  capture  is  not  to  be  made  on  the  ground  of  a  carriage 
of  contraband  previously  accomplished  and  at  the  time  completed. 

Art.  39.  Contraband  is  liable  to  condemnation. 

Art.  40.  The  confiscation  of  the  vessel  carrying  contraband  is  al- 
lowed if  the  contraband  forms,  either  by  value,  by  weight,  by  vol- 
ume, or  by  freight,  more  than  half  the  cargo. 

Art.  41.  If  a  vessel  carrying  contraband  is  released,  the  expenses 
incurred  by  the  captor  in  the  trial  before  the  national  prize  court 
as  also  for  the  preservation  and  custody  of  the  ship  and  cargo  dur- 
ing the  proceedings  are  chargeable  against  the  ship. 

Art.  42.  Goods  which  belong  to  the  owner  of  the  contraband  and 
which  are  on  board  the  same  vessel  are  liable  to  condemnation. 

Art.  43.  If  a  vessel  is  encountered  at  sea  making  a  voyage  in  ig- 
norance of  the  hostilities  or  of  the  declaration  of  contraband  affect- 
ing her  cargo,  the  contraband  is  not  to  be  condemned  except  with 
indemnity;  the  vessel  herself  and  the  remainder  of  the  cargo  are  ex- 
empt from  condemnation  and  from  the  expenses  referred  to  in  Ar- 
ticle 41.  The  case  is  the  same  if  the  master  after  becoming  aware 
of  the  opening  of  hostilities,  or  of  the  declaration  of  contraband, 
has  not  yet  been  able  to  discharge  the  contraband. 

A  vessel  is  deemed  to  be  aware  of  the  state  of  war,  or  of  the  dec- 
laration of  contraband,  if  she  left  a  neutral  port  after  there  had 
been  made  in  .sufficient  time  the  notification  of  the  opening  of  hos- 
tilities, or  of  the  declaration  of  contraband,  to  the  power  to  which 
such  port  belongs.  A  vessel  is  also  deemed  to  be  aware  of  a  state 
of  war  if  she  left  an  enemy  port  after  the  opening  of  hostilities. 

Art.  44.  A  vessel  stopped  because  carrying  contraband,  and  not 
liable  to  condemnation  on  account  of  the  proportion  of  contraband, 
may,  according  to  circumstances,  be  allowed  to  continue  her  voyage 
if  the  master  is  ready  to  deliver  the  contraband  to  the  belligerent 
ship. 

The  deliveiy  of  the  contraband  is  to  be  entered  by  the  captor  on 
the  log-book  of  the  vessel  stopped  and  the  master  of  the  vessel  must 
furnish  the  captor  duly  certified  copies  of  all  relevant  papers. 

The  captor  is  at  liberty  to  destroy  the  contraband  which  is  thus 
delivered  to  him. 


DECLARATION   OF   LONDON,  FEBRUARY  26,  1909.  581 


CHAPTER  III.— UNNEUTRAL  SERVICE. 

Art.  45.  A  neutral  vessel  is  liable  to  be  coDdemned  and,  in  a  gen- 
eral way,  is  liable  to  the  same  treatment  which  a  neutral  vessel 
would  undergo  when  liable  to  condemnation  on  account  of  contra- 
band of  war: 

(1)  If  she  is  making  a  voyage  specially  with  a  view  to  the  trans- 
port of  individual  passengers  who  are  embodied  in  the  armed  force 
of  the  enemy,  or  with  a  view  to  the  transmission  of  information  in 
the  interest  of  the  enemy. 

(2)  If,  with  the  knowledge  of  the  owner,  of  the  one  who  charters 
the  vessel  entire,  or  of  the  master,  she  is  transporting  a  military 
detachment  of  the  enemy,  or  one  or  more  persons  who,  during  the 
voyage,  lend  direct  assistance  to  the  operations  of  the  enemy. 

In  the  cases  specified  in  the  preceding  paragraphs  (1)  and  (2), 
goods  belonging  to  the  owner  of  the  vessel  are  likewise  liable  to 
condemnation. 

The  provisions  of  the  present  Article  do  not  apply  if  when  the 
vessel  is  encountered  at  sea  she  is  unaware  of  the  opening  of  hos- 
tilities, or  if  the  master,  after  becoming  aware  of  the  opening  of 
hostilities,  has  not  been  able  to  disembark  the  passengers.  The  ves- 
sel is  deemed  to  know  of  the  state  of  war  if  she  left  an  enemy  port 
after  the  opening  of  hostilities,  or  a  neutral  port  after  there  had 
been  made  in  sufficient  time  a  notification  of  the  opening  of  hostili- 
ties to  the  Power  to  which  such  port  belongs. 

Art.  46.  A  neutral  vessel  is  liable  to  be  condemned  and,  in  a  gen- 
eral way,  is  liable  to  the  same  treatment  which  she  would  undergo 
if  she  were  a  merchant  vessel  of  the  enemy: 

(1)  If  she  takes  a  direct  part  in  the  hostilities. 

(2)  If  she  is  under  the  orders  or  under  the  control  of  an  agent 
placed  on  board  by  the  enemy  Government. 

(3)  If  she  is  chartered  entire  by  the  enemy  Government. 

(4)  If  she  is  at  the  time  and  exclusively  either  devoted  to  the 
transport  of  enemy  troops  or  to  the  transmission  of  information  in 
the  interest  of  the  enemy. 

In  the  cases  specified  in  the  present  Article,  the  goods  belonging 
to  the  owner  of  the  vessel  are  likewise  liable  to  condemnation. 

Art.  47.  Any  individual  embodied  in  the  armed  force  of  the  enemy, 
and  who  is  found  on  board  a  neutral  merchant  vessel,  may  be  made 
a  prisoner  of  war,  even  though  there  be  no  ground  for  the  capture 
of  the  vessel. 

CHAPTER  IV.— DESTRUCTION  OF  NEUTRAL  PRIZES. 

Art.  48.  A  captured  neutral  vessel  is  not  to  be  destroyed  by  the 
captor,  but  must  be  taken  into  such  port  as  is  proper  in  order  to  de- 
termine there  the  rights  as  regards  the  validity  of  the  capture. 


582  APPENDIX   V. 

Art.  49.  As  an  exception,  a  neutral  vessel  oaptni-od  by  a  belliger- 
ent ship,  and  which  would  be  liable  to  condeumation,  may  be  de- 
stroyed if  the  observance  of  Article  48  would  involve  danger  to  the 
ship  of  war  or  to  the  success  of  the  operations  in  which  she  is  at 
the  time  engaged. 

Art.  50.  Before  the  destruction  the  persons  on  board  must  be  plac- 
ed in  safety,  and  all  the  ship's  papers  and  other  documents  which 
those  interested  consider  relevant  for  the  decision  as  to  the  validity 
of  the  capture  must  be  taken  on  board  the  ship  of  war. 

Art.  .51.  A  captor  who  has  destroyed  a  neutral  vessel  must,  as  a 
condition  precedent  to  any  decision  upon  the  validity  of  the  capture, 
establish  in  fact  that  he  only  acted  in  the  face  of  an  exceptional 
necessity  such  as  is  contemplated  in  Article  49.  Failing  to  do  this, 
he  must  compensate  the  parties  interested  without  examination  as 
to  whether  or  not  the  capture  was  valid. 

Art.  52.  If  the  capture  of  a  neutral  vessel,  of  which  the  destruc- 
tion has  been  justified,  is  subsequently  held  to  be  invalid,  the  captor 
must  compensate  those  interested,  in  place  of  the  restitution  to 
which  they  would  have  been  entitled. 

Art.  53.  If  neutral  goods  which  were  not  liable  to  condemnation 
have  been  destroyed  with  the  vessel,  the  owner  of  such  goods  is  en- 
titled to  compensation. 

Art.  54.  The  captor  has  the  right  to  require  the  giving  up  of,  or 
to  proceed  to  destroy,  goods  liable  to  condemnation  found  on  board 
a  vessel  which  herself  is  not  liable  to  condeumation,  provided  that 
the  circumstances  are  such  as,  according  to  Article  49,  justify  the 
destruction  of  a  vessel  liable  to  condemnation.  The  captor  enters 
the  goods  delivered  or  destroyed  in  the  log-book  of  the  vessel  stop- 
ped, and  must  procure  from  the  master  duly  certified  copies  of  all 
relevant  papers.  When  the  giving  up  or  destruction  has  been  com- 
pleted and  the  formalities  have  been  fulfilled,  the  master  must  be 
allowed  to  continue  his  voyage. 

The  provisions  of  Articles  51  and  52  respecting  the  obligations  of 
a  captor  who  has  destroyed  a  neutral  vessel  are  applicable. 

CHAPTER  v.— TRANSFER  OF  PLAG. 

Art.  55.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected 
before  the  opening  of  hostilities,  is  valid,  unless  it  is  proved  that 
such  transfer  was  made  in  order  to  evade  the  consequences  which 
the  enemy  character  of  the  vessel  would  involve.  There  is,  how- 
ever, a  presumption  that  the  transfer  is  void  if  the  bill  of  sale  is 
not  on  board  in  case  the  vessel  has  lost  her  belligerent  nationality 
less  than  sixty  days  before  the  opening  of  hostilities.  Proof  to  the 
contrary  is  admitted. 

There  is  absolute  presumption  of  the  validity  of  a  transfer  ef- 
fected more  than  thirty  days  before  the  opening  of  hostilities  if  it  is 
absolute,  complete,  conforms  to  the  laws  of  the  countries  concern- 


DECLARATION   OF   LONDON,  FEBRUARY  26,  1909.  583 

ed,  and  if  its  effect  is  such  that  the  control  of  the  vessel  and  the 
profits  of  her  employment  do  not  remain  in  the  same  hands  as  be- 
fore the  transfer. 

If,  however,  the  vessel  lost  her  belligerent  nationality  less  than 
sixty  days  before  the  opening  of  hostilities,  and  if  the  bill  of  sale 
is  not  on  board,  the  capture  of  the  vessel  would  not  give  a  right 
to  compensation. 

Art.  5G.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected 
after  the  opening  of  hostilities,  is  void  unless  it  is  proved  that  such 
transfer  was  not  made  in  order  to  evade  the  consequences  which 
the  enemy  character  of  the  vessel  would  involve. 

There  is,  however,  absolute  presumption  that  a  transfer  is  void: 

(1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a  block- 
aded port. 

(2)  If  there  is  a  right  of  redemption  or  of  reversion. 

(3)  If  the  requirements  upon  which  the  right  to  fly  the  flag  de- 
pends according  to  the  laws  of  the  country  of  the  flag  hoisted  have 
not  been  observed. 

CHAPTER  VI.— ENEMY  CHARACTER. 

Art.  57.  Subject  to  the  provisions  respecting  the  transfer  of  flag, 
the  neutral  or  enemy  character  of  a  vessel  is  determined  by  the  flag 
which  she  has  the  right  to  fly. 

The  case  in  which  a  neutral  vessel  is  engaged  in  a  trade  which  is 
reserved  in  time  of  peace,  remains  outside  the  scope  of,  and  is  in  no 
wise  affected  by  this  rule. 

Art.  58.  The  neutral  or  enemy  character  of  goods  found  on  board 
an  enemy  vessel  is  determined  by  the  neutral  or  enemy  character  of 
the  owner. 

Art.  59.  If  the  neutral  character  of  goods  found  on  board  an  en- 
emy vessel  is  not  proven,  they  are  presumed  to  be  enemy  goods. 

Art.  60.  The  enemy  character  of  goods  on  board  an  enemy  vessel 
continues  until  they  reach  their  destination,  notwithstanding  an  in- 
tervening transfer  after  the  opening  of  hostilities  while  the  goods 
are  being  forwarded. 

If,  however,  prior  to  the  capture  a  former  neutral  owner  exer- 
cises, on  the  bankruptcy  of  a  present  enemy  owner,  a  legal  right  to 
recover  the  goods,  they  regain  their  neutral  character. 


CHAPTER  VII.— CONVOY. 

Art.  61.  Neuti'al  vessels  under  convoy  of  their  national  flag  are 
exempt  from  search.  The  commander  of  a  convoy  gives,  in  writing, 
at  the  request  of  the  commander  of  a  belligerent  ship  of  war,  all  in- 
formation as  to  the  character  of  the  vessels  and  their  cargoes,  which 
could  be  obtained  by  visit  and  search. 


584  APPENDIX  V. 

Art.  G2.  If  the  commander  of  the  belligerent  ship  of  war  has  rea- 
son to  suspect  that  the  coiifldence  of  the  commander  of  the  convoy 
has  been  abused,  he  communicates  his  suspicions  to  him.  In  such 
a  case  it  is  for  the  commander  of  the  convoy  alone  to  conduct  an  in- 
vestigation. He  must  state  the  result  of  such  investigation  in  a  re- 
port, of  Avhich  a  copy  is  furnished  to  the  officer  of  the  ship  of  war. 
If,  in  the  opinion  of  the  commander  of  the  convoy,  the  facts  thus 
stated  justify  the  capture  of  one  or  more  vessels,  the  protection  of 
the  convoy  must  be  withdrawn  from  such  vessels. 

CHAPTER  VIII.— RESISTANCE  TO  SEARCH. 

Art.  63.  Forcible  resistance  to  the  legitimate  exercise  of  the  right 
of  stoppage,  visit  and  search,  and  capture,  involves  in  all  cases  the 
condemnation  of  the  vessel.  The  cargo  is  liable  to  the  same  treat- 
ment which  the  cargo  of  an  enemy  vessel  would  undergo.  Goods 
belonging  to  the  master  or  owner  of  the  vessel  are  regarded  as  ene- 
my goods. 

CHAPTER  IX.— COMPENSATION. 

Art.  64.  If  the  capture  of  a  vessel  or  of  goods  is  not  upheld  by  the 
prize  court,  or  if  without  being  brought  to  judgment  the  captured 
vessel  is  released,  those  interested  have  the  right  to  compensation, 
unless  there  were  sufficient  reasons  for  capturing  the  vessel  or  goods. 

FINAL  PROVISIONS. 

Art.  65.  The  provisions  of  the  present  Declaration  form  an  indi- 
visible whole. 

Art.  66.  The  Signatory  Powers  undertake  to  secure  the  reciprocal 
observance  of  the  rules  contained  in  this  Declaration  in  case  of  a 
war  in  which  the  belligerents  are  all  parties  to  this  Declaration. 
They  will  therefore  issue  the  necessary  instructions  to  their  authori- 
ties and  to  their  armed  forces,  and  will  take  the  measures  which  are 
proper  in  order  to  guarantee  the  application  of  the  Declaration  by 
their  Courts  and  more  particularly  by  their  prize  courts. 

Art.  67.  The  present  Declaration  shall  be  ratified  as  soon  as  pos- 
sible. 

The  ratifications  shall  be  deposited  in  Loudon. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  Protocol 
signed  by  the  Representatives  of  the  Powers  taking  part  therein,  and 
by  His  Britannic  Majesty's  Principal  Secretary  of  State  for  For- 
eign Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by  means 
of  a  written  notification  addressed  to  the  British  Government,  and 
accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  Protocol  relating  to  the  first  deposit 
of  ratifications,  and  of  the  notifications  mentioned  in  the  preceding 
paragraph  as  well  as  of  the  instruments  of  ratification  which  ac- 


DECLARATION  OF  LONDON,  FEBRUARY  20,  1009.      585 

company  them,  shall  be  immediately  sent  by  the  British  Government, 
through  the  diplomatic  channel,  to  the  Signatory  Powers.  The  said 
Government  shall,  in  the  cases  contemplated  in  the  preceding  para- 
graph, inform  them  at  the  same  time  of  the  date  on  which  it  re- 
ceived the  notification. 

Art.  68.  The  present  Declaration  shall  take  effect,  in  the  case  of 
the  Powers  which  were  parties  to  the  first  deposit  of  ratifications, 
sixty  days  after  the  date  of  the  Protocol  recording  such  deposit,  and, 
in  the  case  of  the  Powers  which  shall  ratify  subsequently,  sixty  days 
after  the  notification  of  their  ratification  shall  have  been  received 
by  the  British  Government. 

Art.  G9.  If  it  happens  that  one  of  the  Signatory  Powers  wishes  to 
denounce  the  present  Declaration,  such  denunciation  can  only  be 
made  to  take  effect  at  the  end  of  a  period  of  twelve  years,  begin- 
ning sixty  days  after  the  first  deposit  of  ratifications,  and,  after  that 
time,  at  the  end  of  successive  periods  of  six  years,  of  which  the  first 
will  begin  at  the  end  of  the  period  of  twelve  years. 

Such  denunciation  must  be  notified  in  writing,  at  least  one  year  in 
advance,  to  the  British  Government,  which  shall  inform  all  the 
other  Powers. 

It  will  only  operate  in  respect  of  the  Power  which  shall  have 
made  the  notification. 

Art.  70.  The  Powers  represented  at  the  London  Naval  Conference 
attach  particular  value  to  the  general  recognition  of  the  rules  which 
they  have  adopted  and  express  the  hope  that  the  Powers  which  were 
not  represented  will  adhere  to  the  present  Declaration.  They  re- 
quest the  British  Government  to  invite  them  to  do  so. 

A  Power  which  desires  to  adhere  notifies  its  intention  in  writing 
to  the  British  Government,  In  transmitting  the  act  of  adhesion, 
which  will  be  deposited  in  the  archives  of  the  said  Government. 

The  said  Government  shall  forthwith  transmit  to  all  the  other 
Powers  a  duly  certified  copy  of  the  notification,  as  also  of  the  act 
of  adhesion,  stating  the  date  on  which  it  received  the  notification. 
The  adhesion  takes  effect  sixty  days  after  such  date. 

The  position  of  the  adhering  Powers  shall  be  in  all  matters  con- 
cerning this  Declaration  similar  to  the  position  of  the  Signatory 
Powers. 

Art  71.  The  present  Declaration,  which  shall  bear  the  date  of  the 
26th  February,  1009,  may  be  signed  in  London  until  the  30th  June, 
1909,  by  the  Plenipotentiaries  of  the  Powers  represented  at  the  Na- 
val Conference. 

In  faith  whereof  the  Plenipotentiaries  have  signed  the  present 
Declaration,  and  have  thereto  afiixed  their  seals. 

Done  at  London,  the  twenty-sixth  day  of  February,  one  thousand 
nine  hundred  and  nine,  in  a  single  original,  which  shall  remain  de- 
posited in  the  archives  of  the  British  Government,  and  of  which 
duly  certified  copies  shall  be  sent  through  the  diplomatic  channel  to 
the  Powers  represented  at  the  Naval  Conference. 


TABLE  OF  CASES  CITED 


[the  figures  Kp:rER  to  pages.] 


Acteon.  The,  307. 
Adeline,  The.  300. 
Adger  v.  Alston.  379. 
Adula,  The,  451. 
Adventure,  The,  477. 
Alexander,  The.  299. 
Alliance,  The.  303. 
Amelia,  The,  16. 
Antelope,  TTie,  75. 
Ariadne,  The,  473. 
Astrea,  The,  300. 
Atlas,  The,  40(;. 
Aurora,  The,  3G.j,  473. 

B 

Batesville  Institute  v.  Kauffman, 

379. 
Benito  Estenger,  The,  407. 
Bentzon  v.  Boyle,  295. 
Bermuda,  The,  463. 
Blumer,  Ex  parte,  16. 
Brown  v.  Hiatt,  379. 
Brown  v.  U.  S.,  284. 
Buena    Ventura,    The,    243,    247, 

290. 


Caledonian,  The,  365. 
Carolina,  The,  470. 
Carter  v.  McClaughry,  340. 
Charming  Betsy.  The,  16. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Me 

Glinn,  77. 
Chinese   Exclusion   Case,   143. 

WlLS.lNT.L.  (58 


Church  of  Jesus  Christ  of  Latter- 

Day  Saints  v.  U.  S.,  83. 
Circassian,  The,  449,  451,  462,  480. 
Columbia,  The,  451. 
Commercen,  The,  430,  431. 
Constitution,  The,  150. 
Coppell  V.  Hall,  365. 
Cotton  Plane,  The,  v.  U.  S.,  477. 


Davis  V.  Concordia  Parish,  84. 
De  Geofroy  v.  Riggs,  194,  200, 
Delassus  v.  U.  S.,  84. 
De  Lima  v.  Bidwell,  84. 
Dewey  v.  U.  S.,  310. 
Diamond  Rings,  The,  84,  191. 
Direct  U.  S.  Cable  Co.  v.  Anglo 

American  Tel.  Co.,  101,  103. 
Divina  Pastora,  The,  27. 
Dooley  v.  U.  S.,  84,  329,  330,  332. 
Dow  V.  Johnson,  339. 
Downes  v.  Bidwell,  84,  133,  330. 
Dynes  v.  Hoover,  340. 


Edward  and  Mary,  299. 
Edye  v.  Robertson,  191. 
Emperor  of  Austria  v.  Day,  27. 
Ernst  jNIerck.  The,  407. 
Exchange,  The,  v.  McFaddon,  92, 
148,  149. 


Felicity,  The,  307. 
Florida,  The,  250. 

7) 


588 


CASES   CITED. 
[The  figures  refer  to  pages.] 


143. 


Fong  Tue  Ting  v.  U.  S. 
Foster  v.  Neilson,  27. 
Francis.    The.   400. 
Franeislvji,  Tlie,  451. 
Franlvlin,  The,  434. 
Frederick  Mollie,  Tlie,  451.  454. 
Frelinsluiysen  v.  Key,  22S. 
Friendship,  The,  470. 


Garcia  v.  Lee,  27. 

Geipel  v.  Smith,  448. 

Gelston  v.  Hoyt,  27. 

General   Hamilton,   The,  454. 

George,  The,  303. 

Georgia  v.  Tennessee  Copper  Co. 

88. 
Gospel  V.  "UTieeler,  272. 
Grotius,  The,  299,  410,  477. 
Guyer  v.  Smith,  127. 


H 


Handly  v.   Anthony,   86. 
Harmony,  The,  294. 
Hauenstein  v.  Lynham,  200. 
Haver  v.  Yal^er,  199. 
Hilton  V.  Guyot.  5,  6,  13. 
Hiram,  The,  36.5,  473. 
Hoop,    The,    303. 

Hudson  County  Water  Co.  v.  Mc- 
Carter,  89. 


I 


Illinois    Cent.    R.    R.   v.    Illinois, 

104,  105,  115. 
Imperial  Japanese  Government  v. 

P.  &  O.  Co.,  204. 
Insular  Decisions,  133. 
Iowa  V.  Illinois,  107. 


Jange  Tobias,  The,  433. 
Johanna  Maria,  The,  446,  451. 


Johnson  v.  Mcintosh,  80,  83,  37U. 
Jones  v.  U.  S.,  27,  80. 
Jonge  Klassina,  The,  295. 
Julia,   The,   365,   473. 

K 

Keone  v.  McDonough,  27. 
Kennett  v.  Chambers,  16. 


La  Abra  Silver  Min.  Co.  v.  U.  S. 

211.  228. 
Lamar  \.  Browne,  478. 
La   Ninfa,   227. 
Leucade,  The.  307. 
Lucy,  The,  433. 
Luther  v.  Borden,  339. 


M 


Maissonaire  v.  Keating,  302. 

Mangrove,  The,  309. 

Maria,  The,  10,  405,  478. 

Mary,  The,  299. 

Memphis,   The,  455. 

Mighell  V.  Sultan  of  Johoro.  148 

Miller  v.  Resolution,  ,302,  477. 

Milligan,   Ex  parte,  343. 

Mitchell  V.  U.  S.,  371. 

More  V.  Steinbach.  77. 

Mortensen  v.  Peters,  110. 


N 


Neptunus,  The,  451. 

Nereide,  The,  17. 

New  York,  The,  17. 

New   York   Life    Ins.   Co.   t.   Sta- 

tham,  270. 
North  American  Commercial  Co. 

V.  U.  S.,  228. 


Olinde  Rodrigues.  The,  443,  443. 
Orozembo,  The,  470. 


10, 


Panama,  The,  290,  312. 
Paquete   Habana,   The,   5,   0. 

13,  17,  288. 
Parlement  Beige,  The,  7G.  150. 
Pedro,  The,  14,  243,  249,  477. 
Pelican,  The,  27. 
Peterhoff,  The.  434,  441,  4G3. 
Prize   Cases,   The,   249,   272.   440 

446. 
Protector,  The,  249,  374,  379. 


Reg.  V.  Cunningham,  101. 
Reg.  V.  Jameson,   391. 
Reg.  V.  Keyn,  85,  86. 
Republic  of  Peru  v.  Dreyfus,  27. 
Republic    of    Peru    v.    Peruvian 

Guano  Co.,  27. 
Respublica  v.  De  Longchamps,  IG. 
Ringende  Jacob,  The,  433. 


Salvador,  The,  44. 

Santa  Cruz,  The,  10. 

Santissima  Trinidad,  The,  92,  US, 
303,  431. 

Santo  Domingo,  The,  310. 

Scholefleld  v.  Eichelberger,  270. 

Scotia,  The,  10,  16. 

Screw  Collier  Co.  v.  Schurmans. 
98. 

Sea  Lion,  The,  3G5. 

Semmes  v.  City  Fire  Ins.  Co.,  378. 

Semmes  v.  Hartford  Ins.  Co.,  270. 

Sifekin  V.  Glover,  3G5. 

Siren,  The,  v.  U.  S.,  477. 

Small's  Adxn'r  v.  Lumpkin's  Ex'x, 
271. 

Society  for  Propagation  of  Gos- 
pel V.  New  Haven,  378. 

Springbok,  The,  462. 

Staadt  Embden,  The,  434. 

Star,  The,  478. 


CASES   CITED.  589 

[The  figures  refer  to  pages.l 

State  of  Kansas  v.  State  of  Colo- 
rado, lOG. 
Stephen  Hart,  The,  463. 
Strother  v.  Lucas,  84. 
Symons  v.  Baker,  150. 


Talbot  V.  Seeman,  16. 

Taylor  v.  Barchlay,  27. 

Thirty    Hogsheads    of    Sugar    T. 

Boyle,  5,  12,  16,  330. 
Thompson,  The,  404. 
Three   Friends,   The,   39,   40,   44, 

243. 
Tucker  v.  Alexandroff.  200,  201. 
Two  Friends,  The,  300. 


Underhill   v.    Hernandez,   44,   56, 

243. 
U.  S.  V.  The  Active,  16. 
U.  S.  V.  Alexander,  477. 
U.  S.  V.  Arjona,    16. 
U.  S.  V.  De  la   Maza  Arredondo, 

5,  84. 
U.  S.  V.  De  Repentigny,  83. 
U.  S.  V.  Dewey,  300,  310,  477. 
U.  S.  V.  Diekelman,  332. 
U.  S.  V.  Dunniugton,  381. 
U.  S.  V.  Huckabee,  83,  371. 
U.  S.  V.  Lynde,  27. 
U.  S.  V.  McRae,    50. 
U.  S.  V.  Moreno,  370. 
U.  S.  V.  One  Hundred  Barrels  of 

Cement,  40. 
U.  S.  V.  Palmer,   27. 
U.  S.  V.  Percheman,  52,  84,  371. 
U.  S.  V.  Rauscher,   146. 
U.  S.  V.  Rice,  331. 
U.  S.  V.  Rodgers,  104,  117. 
U.  S.  V.  Rogers,    115. 
U.  S.  V.  Smith,  .50. 
U.  S.  V.  Taylor,  310. 
U.  S.  V.  Wright,  363. 
U.  S.  V.  Yorba,  27. 


590 


Vavasseur  v.  Krupp,  7G.  148, 
Vrouw  Anna  Cathaiiiui,  295. 


w 


CASES   CITED. 
[The  figures  refer  to  pages.] 

West  Rand  Cent.  Gold  Min.  Co.  v. 

Rex,  11. 
Williams  v.  Suffolk  Ins.  Co.,  27. 
William,  The.  401. 
Wilson  V.  McManee,  117. 


13. 


Walshingham  Packet,   The, 
Ward  V.  Race  Horse,  207. 
Ward  V.  Smith,  271. 
Ware  v.  Hylton,  4,  31,  284. 
Weber  v.  Harbor  Com'rs,  115. 
Welvaart  van  Pillaw.  The,  4.54. 
Western  Union  Tel.  Co.  v.  Texas, 
123. 


Yangtsze  Ins.  Ass'n  v.  Indemnity 

Mutual  Marine,  lus.  Co.,  470. 
Yeaton  v.   Frj-,   451. 


Zaratarlan  v.  Billings,  131. 


INDEX 


[the  figubks  refer  to  pages] 


A 

ABROGATION, 
of  treaties,  211. 

ABSOLUTELY  CONTRABAND, 

what  articles  are,  426,  427. 

ABSTENTION, 

neutral  duty  of,  256-258. 

ACCRETION, 

acquisition  of  territory  by,  82. 

ACQUISITION, 

of  international   status,  24-25. 
of  territorial  domain,  79-85. 
of  nationality,  126-135. 

ADMISSION, 

of  insurgency,  48. 

AERIAL  DOMAIN, 

what  it  includes,  87-90. 

AERIAL  JURISDICTION,  120-124. 

AGGRESSION. 

of  insurgent,  resisted  by  private  vessel,  48. 

ALABAMA, 

case  of,  260. 

ALIENS, 

rights  of,  as  to  naturalization,  137-139. 
Jurisdiction  over,  143-145. 

ALLIES, 

obligations  in  case  of  war,  253. 

ALTERNAT, 

principle  of,  197. 

AMALPHITAN  TABLES,  10. 

WiLS.lNT.L.  (591) 


592  INDEX. 

[The  figures  refer  to  pages.] 

AMBASSADORS, 

office  of  in  early  days,  161. 

rules  as  to,  1G2-164. 

appointment  of,  163. 

right  of  legation,  165. 

suite  of,  166. 

credentials,  166-168. 

commencement  of  mission,  168,  169. 

privileges  and  prerogatives  of,  169-176. 

functions  of,  176-178. 

termination  of  mission,  178-180. 

AMNESTY, 

nature  of,  381. 

ANGARY, 

right  of,  416. 

ANGLO-AMERIOAN  DOCTRINE, 
of  contraband,  433,  434. 

APPOINTMENT, 

of  diplomatic  agents,  162-164. 
of  consuls,  1S4-186. 

ARBITRAL  JUSTICE, 

court  of,  225,  568. 

ARBITRATION, 

historical  development  of,  221,  222. 
Hague  Convention,  12,  223,  375,  519. 
by  summary  procedure,  224,  532. 
award,  227,  531.    ' 

AREA, 

of  belligerent  operations,  250-253. 

of  operations  of  blockading  force,  456,  457. 

ARMED  NEUTRALITIES  OF  17S0  AND  1800,  388,  402. 

ARMISTICES, 
kinds  of,  360. 

of  Russia  and  Japan.  360. 
operation  of,  361,  362. 

ASYLUM, 

on  vessels,  118.  ' 

in  legations,  172. 
in  consulates,  188. 

ATALAN-TA, 

case  of,  472. 

AWARD, 

made  by  arbitrators,  227,  228.  531. 


INDEX.  593 

FThe  figures  refer  to  pages.] 


B 


BALANCE  OF  POWER  IN  EUROPE, 

intervention   for  maintenance  of,  66,  67. 

BALLOONS, 

in  aerial  domain,  88. 

jurisdiction  over,  121. 

launching  of  projectiles  from,  326,  327. 

BAYS, 

jurisdiction  over,  100. 

BELGIUM, 

neutralization  of,  33. 

BELLIGERENCY, 

recognition  of,  40-43. 

BELLIGERENTS, 

effect  of  war,  253. 

obligations  of,  254,  255. 

persons,  273. 

qualifications  of,  274,  275. 

property  on  land,  278-284. 

property  at  sea,  285-298. 

maritime  capture,  299-316. 

conduct  of  tiostilities,  317-328. 

occupation,  329-343. 

nonhostile   relations    of,    357-365. 

relations  with  neutral  states,  395. 

relations   with   neutral   individuals,  395,   396. 

carriage  of,  470. 

BELLIGERENT  OPERATIONS, 

area  and  general  effect  of,  250-253. 

BERING  SEA. 

fisheries  in,  115. 

BERLIN  CONFERENCE, 

on  acquisition  of  African  territory,  80. 

BLOCKADE, 

pacific,  235-237. 

a  war  measure,  262. 

definition  of,  439,  440 

commercial,  440. 

strategic,  440. 

place  of,  440^42. 

establishment  of,  442,  443. 

declaration  and  notification  of,  441-416. 

maintenance  of,  447. 

WiLS.lNT.L.— 38 


594  INDEX. 

[The  figures  refer  to  pages.] 
BLOCKADE— Continued, 
termination  of,  449-451. 
violation  of,  451,  452. 
penalty  for  violation  of.  4.5.3. 
area  of,  45G. 
liability  for  violation  of,  454-458. 

BOMBARDMENT, 

regulations    of,   323,   324. 

BOOTY, 

nature  of,  284. 

BRITISH  ENLISTMENT  ACT, 
provisions  of,   491. 

c 

CANADA, 

coast  fislieries,  117. 
CANALS, 

navigation  of,  109-113. 

Corinth,  110. 

Kiel,  110. 

Suez,  109,  110. 

Panama,  112. 

Nicaraguan,  111. 

status  of  in  war,  441. 
CAPITULATION, 

nature  of,  358,  359. 

CAPTURE, 

grounds  of  on  sea,  404.  405. 
exemptions  from,  285-295. 

CAPTURED  VESSELS, 
treatment  of,  409-412. 

CARTEL  SHIP, 

exemption  of,   from   capture,   286,   287. 

CARTELS, 

what  they  are,  193,  362,  363. 

CEREMONIALS, 

diplomatic,  168. 

CESSATION  OF  HOSTILITIES, 

involving  military  occupation  and  military  control,  341-343. 
as  a  termination  of  war,  373,  374. 
efiTect  of,  374,  375. 

CESSION, 

of  territory,  83-85. 


INDEX,  695 

[The  figures  refer  to  pages.] 

CHAP^GES  D' AFFAIRS. 

rules  as  to,  161  et  seq. 

CHARITABLE  INSTITUTIONS, 
in  time  of  war,  281. 

CHINA, 

United  States  Court  for,  152. 
leased  territory  in,  95-97. 

CIRCASSIAN,  THE, 
case  of,  462. 

CITIZENSHIP, 

see  Nationality, 
acquisition  of,  12G-135. 
expatriation,  135. 

CIVIL  RIGHTS  AND  REMEDIES, 
during  war,  270-272. 

CLEVELANT),  PRESIDENT, 

position,  as  to  intervention  of  VenezAiela,  70,  71- 

neutrality  laws,  44. 

as  to  practice  in  case  of  diplomats,  178. 

COMBATANTS. 

who  are,  273-276. 

COMMENCEMENT, 
of  war,  245-249. 

of  mission,  IGS,  169.  ' 

COMMERCIAL  BLOCKADE, 
what  it  is,  440. 

COMMISSIONS  OF  INQUIRY, 
what  they  are,  220-221.  521. 
Dogger  Bank  affair,  220. 

COMMUNICATION, 
hy  wires,  296. 
without  wires,  296-298. 

CONCEPTION  BAY, 

jurisdiction  of,  103. 

CONDITIONALLY    CONTRABAJSTD, 

articles,  427,  428. 

CONDOMINIUM, 

joint  jurisdiction,  93. 

CONFERENCES  AND  CONGRESSES, 

as  a  means  of  settling  disputes,  222-226. 

CONFISCATION, 

as  military  measure,  304. 


596  INDBX. 

[The  figures  reler  to  pages.] 

CONQUEST, 

acquisition  by,  82. 

termination  of  war  by,  366-368. 

effect  of,  36S-372. 

CONSTITUTION  OF  THE  UNITED  STATES, 
as  to  force  of  international  law,  15. 
as  to  citizens  of  the  United  States,  126. 
appointment  of  ambassadors,  163. 
as  to  effect  of  treaty,  207. 

CONSULS, 

exemptions  of,  14S. 

historically  considered,   181,  182. 

functions  of,  182-184. 

appointment  and  reception  of,  184-186. 

termination  of  office,  186,  187. 

immunities  and  privileges  of,  187-190. 

CONTINUOUS  VOYAGES, 
rule  as  to,  459-468. 

CONTRABAND  OF  WAR, 

liability  to  seizure,  262,  430^32. 
definition  of,  418-420. 
classification  of,  420^30. 
penalty  for  carrying,  432-437. 

CONTRACT, 

form  of  between  states,  195-197. 
suspension  of  private,  270. 

CONTRIBUTIONS, 
in  war,  282. 

CONVENTION, 

difference  between  and  treaty,  192. 

Declaration  of  Paris,  April  16,  1856,  487. 

instructions  for  the  government  of  armies  of  the  United  States 

in  the  field,  April  24,  1863,  488. 
Geneva  Convention  for  the  amelioration  of  the  condition  of  the 

wounded  in  armies  in  the  field,  July  6,  1906,  508. 
Hague  Conventions  of  1907 — 

final  act  of  the  Second  International  Peace  Conference,  515. 
convention  for  the  pacific  settlement  of   international   dis- 
putes, 519. 
convention  respecting  the  laws  and  customs  of  war  on  land, 

535. 
convention  respecting  the  rights  and  duties  of  neutral  pow- 
ers and  persons  in  case  of  war  on  land,  546. 
convention  for  the  adaptation  to  naval  war  of  the  principles 
of  the  Geneva   Convention,   549. 


INDEX.  597 

[The  figures  refer  to  pages.] 

CONVENTION— Continued, 

convention  relative  to  tlie  creation  of  an  international  prize 

court,  554. 
convention  concerning  tlie  rights  and  duties  of  neutral  pow- 
ers in  naval  war,  563. 
draft  convention  relative  to  the  creation  of  a  court  of  ar- 
bitral justice,  568. 
Declaration  of  London,  February  26,  1909,  574. 

CONVERSION  OF  MERCHANT  VESSELS, 
in  time  of  war,  314. 

CONVOY, 

vessels  under,  402,  403. 

CORRESPONDENTS, 
newspaper,  345. 
not  spies,  327. 

COURTS, 

of  prize,  12-13,  478-482. 
of  arbitration,  12,  225. 
martial,  340. 

CRIMES, 

extradition  for,  146. 

CUSTOM, 

practice  and  usage,  9. 


DANISH  SOUND  DUES, 

abolition  of,  108. 

DEATH  OF  DIPLOMATIC   AGENT, 
proceedings  on,  179. 

DEBTS, 

iu  time  of  war,  244. 

DECLARATION  OF  IX)NDON, 

provisions  of,  307,  308,  403,  406,  414,  415,  431,  432,  434-437,  442, 
444,  452,  456,  4S2. 

form  of,  574. 
DECLARATION  OF  PARIS, 

as  to  contraband,  419. 

form  of,  487. 
DECLARATION, 

of  intention  to  change  nationality,  140. 

of  war,  246-248. 

of  neutrality,  393,  394. 

of  blockade,  444-446. 


598  INDEX. 

[The  figures  refer  to  pages.] 

DECT.ARATIONS, 
delined,   193. 

DEFINITIONS, 

see  word  or  phrase  when  defiuition  is  desired. 

DE   GEOFREY   V.   RIGGS, 
case  of,  200. 

DELAI  DE  PAVEUR, 

vessels  exempt  by,  289. 

DENMARK, 

jurisdiction  of,  over  Danish  Sound  and  Two  Belts,  108,  109. 

DENUNCIATION, 

of  treaty,  210. 
DEPARTMENT  OF  FOREIGN  AFFAIRS, 

in  diplomacy,  158-159. 

DESTRUCTION, 

of  neutral  property  at  sea,  412-417. 
of  enemy  property,  322. 

DIPLOMATIC  AGENTS, 

exemptions  of,  148. 

grades  of,  159-162. 

appointment  of,  162-164. 

right  of  legation,   104-166. 

suite  of,  IGG. 

credentials  of,  166-168. 

commencement  of  mission,  168,  1G9. 

privileges  and  prerogatives,  169-176. 

functions  of,  176-178. 

termination  of  mission,  178-180. 

DIPLOMATIC  NEGOTIATION, 

as  a  means  of  adjusting  differences,  218. 

DIPLOMATIC   PAPERS, 

as  a  source  of  international  law,  14. 

DIPLOMATIC  RELATIONS, 
breaking  off  of,  229,  230. 

DISPUTES, 

amicable  settlement   of,   217-228,   519. 

DOGGER  BANK  AFFAIR. 

commission  of  inquiry  on,  220. 

DOMAIN, 

kinds  of,  78,  79. 

acquisition  of  territorial,  79-85. 
maritime  and  fluvial,  85-87. 
aerial,  87-90. 


INDEX.  599 

[The  figures  refer  to  pages.] 


DOMICILE, 

as  test  of  liability  to  capture,  294. 

"DUE  DILIGENCE," 
duty  to  use,  2G0. 
"means  at  its  disposal,"  art.  25,  5GG. 

DUTY, 

of  nonintervention,  57-65. 


E 

EGYPT, 

mixed  courts  of,  152. 
condominium  over  Soudan,  94. 

EMBARGO, 

defined,  232-233. 

ENEMY, 

see  Belligerents. 

EQUALITY, 

right  of,  73-75. 

ESCAPE, 

of  prisoners  of  war,  350,  351. 

EXCHANGE, 

of  prisoners  of  war,  350. 

EXEMPTIONS, 

from   .iurisdietion,    147-150. 

of  diplomat,   from  criminal  and  civil  jurisdiction,  170-172. 

of  consuls,  187. 

EXEQUATUR, 
form  of,  1S5. 
withdrawal  of,   1S7. 

EXPATRIATION, 

doctrines  of,  135,  136. 

EXTRATERRITORIAL  JURISDICTION, 
nature  and  extent  of,  151,  152. 

EXTERRITORIALITY, 

see  Exemptions ;    Immunity. 

EXTRADITION, 

nature  of,  145-147. 

F 

FALSE  COLORS. 

in  maritime  warfare.   322. 


GOO  INDEX. 

IThe  figures  refer  to  pages.) 

FISHERIES, 

ou  high  seas,  115-117. 
Bering  Sea,  115,  116. 
Canadian,  117. 

FISHING  VESSELS, 

exemption  of,   from  capture,   288,   289. 

BT^AG, 

transfer  of,  407,  408,  582. 

FLAGS  OF  TRUCE, 
use  of,  357,  358. 

FORAGING, 

when  allowed,  283. 

FORBIDDEN  METHODS, 
in  war,  322,  323. 

FORCE. 

display  of,  234. 

FORCES, 

belligerent,  273. 

FOREIGN  AFFAIRS, 

department   of,    158,    159. 

FOREIGN-BORN  SUBJECTS, 
jurisdiction  over,  126. 

FOREIGN  ENLISTMENT  ACXT, 
British  regulations,  263. 

FORMOSA, 

blockade  of,  235,  236. 

FRANCE, 

treaty   of   United   States   as  to   "most   favored   nation   clau.se, 

202-204. 
treaty  with  Spain,  as  to  recession  of  Louisiana,  213. 

FREiE   GOODS, 

doctrine  of,  428,  429. 

'•FREE    SEAS," 
limits  of,  97. 

"FULL  POWERS," 
of  diplomats,  167. 

G 

GENE^^A  ARBITRATION, 

neutral  duties,  260. 

GENEVA  CONVENTION, 

as  to  neutral  duty  of  prevention,  258. 


INDEX.  601 

[The  figures  refer  to  pages.] 

GENEVA  CONVENTION — Continued, 

for  the  amelioration  of  the  condition  of  the  wounded  in  armies 

in  the  field  1906,  provisions  of,  354,  508. 
adaptation  to  maritime  warfare,  355,  549. 

GERMANY, 

position  of  as  to  aerial  domain,  89. 

attitude  of  as  to  transport  of  wounded  across  Belgium,  261. 

ordinance  regarding  payment  of  war  debts,  281. 

GOODS, 

liability  of,  to  capture  at  sea,  286. 
in  general,  290-295. 
enemy   character  of,  294. 

GOOD  OFFICES, 

settlement  of  disputes  by  resorting  to,  218-220. 

GOVERNMENT, 
forms  of,  23. 

GREAT   BRITAIN, 

political  union  with  Hanover,  34. 

as  protector  of   South  African   Republic,  35. 

temporary  occupation  of  Egypt,  38. 

relations  of,  to  treaty  of  Utrecht,  66. 

declaration  with  Germany  as  to  spheres  of  influence  in  West- 
ern Pacific,  81. 

agreement  of,  as  to  Islands  of  Samoa,  93. 

agreement  with  Egypt,  as  to  condominium  over  the  Soudan,  94, 
95. 

Clayton-Bulwer  treaty  with  United  States,  111. 

Hay-Pauncefote  treaty  in  regard  to  trans-isthmian  canal.   111. 

convention  of,   as  to  Suez  Canal,   110. 

treaty  with  United  States  as  to  navigation  of  Mississippi,  114. 

jurisdiction  of,  over  aliens,  135. 

contention  in  regard  to  "most  favored  nation  clause,"  204. 

agreement  with  Japan,  206. 

attitude  toward   blockade  of  Venezuela,   236. 

doctrine  of  continuous  voyage,  460. 

case  of  the  seizure  of  the  Herzog,  General,  and  Bundesrath, 
464,  465. 

GREAT  LAKES, 

jurisdiction   over,   104,   105. 

GREAT  POWERS, 

enumeration   of,   74. 

GREECE, 

in  early  international  law,  7. 
as  to  arbitration,  221. 


602  INDEX. 

[The  figures  refer  to  pages.] 

GROTIUS, 

contribution  to  international  law,  8. 

GUADALUPE  HIDALGO, 

treaty  of,  as  to  arbitration,  222. 

GUARANTY, 

treaties  of,  205-207. 

GULFS, 

as  affecting  jurisdiction,  100. 
navigation  of,  201. 

H 

HAGUE  CONVENTIONS, 

as  to  court  of  arbitration,  12,  519. 

customs  of  war  on  land,  280,  296,  333,  336,  347,  535. 

rights  of  capture,  in  naval  war,  301. 

conversion  of  merchant  ships  into  war  ships,  315. 

laying  of  automatic  contact  submarine  mines,  324,  32.5. 

care  of  sick  and  wounded,  355,  549. 

pacific  settlement  of  international  disputes,  375,  519. 

final  act  of  the  Second  Peace  Conference,  515. 

rights  of  neutral  powers  in  naval  war,  410.  411,  563. 

rights  of  neutral  powers  in  war  on  land,  121,  254,  255,  256,  257, 
297,  .346. 

creation  of  international  prize  court,  4S1,  554. 

adaptation  to  naval  war  of  the  principles  of  the  Geneva  Con- 
vention, 354,  549. 

draft  convention  relative  to  creation  of  court  of  arbitral  jus- 
tice, 568. 

relative  to  the  creation  of  international  prize  court,  554. 

HAY-PAUNCEFOTE  TREATY, 

as  to  navigation  and  neutralization  of  canal,  111. 

HEAD  OF  STATE, 

in  international   relations,  157,  158. 

HILTON  V.  GUYOT, 

case  of,  5,  6. 

"HINTERLAND  DOCTRINE," 
of  occupation,  81. 

HOSPITAL  SHIPS, 

status  of,  287. 

HOSTILE  MILITARY  OCCUPATION, 
what  constitutes,  .329-331. 

HOSTILITIES, 

commencement  of,  24.5. 
cessation  of,  373,  374. 


INDEX.  603 

[The  figures  refer  to  pages.] 

h6tel  op  state  representative, 

exemption  of,  148. 

HUMANITT, 

as  ground  for  intervention,  64. 

I 

IMMUNITY, 

of  diplomatic  agents,  172. 
of  consuls,  187. 

INDEPENDENCE, 
right  of,  56,  57. 

INDIVIDUALS, 

see  Persons, 
under  international  law,  21. 

INSTRUMENTS, 
of  war,  319. 

INSURANCE, 

suspension  of,  270. 

INSURGENCY, 

what  constitutes,  43^9. 

INTERCOURSE, 

right  of,  165. 
suspension  of,  271. 

INTEREST. 

suspension  of,  271. 

INTERNATIONAL  ARBITRATION, 
object,  etc.,  221-228. 

INTERNATIONAL  COMMISSION  OF  INQUIRY, 

into  North  Sea  incident,  220. 
INTERNATIONAL  DIFFERENCES, 

nature  of,  217. 

INTERNATIONAL  LAW, 

definition  of,  2-6. 

place  of  international  private  law,  6. 

development  of,  7-9. 

sources  of,  0-14. 

force  of,  15-17. 

status  of  persons  in,  21. 

states,  22. 

definition  of  state,  22-24. 

acquisition  of  international  status,  24,  25. 

recognition  of  international  status,  26-31 

persons  having  limited  status,  31. 


604  INDEX. 

[Th»  figures  refer  to  pages.] 

INTERNATIONAL  LAW— Continued, 

states  outside  the  family  of  nations,  32. 

neutralized  states,  32,  33. 

members  of  political  unions,  33-35. 

protected  states,  35-39. 

belligerents,  39. 

recognition  of  belligerency,  40-43. 

insurgency,  43—49. 

loss  or  modification  of  status,  49-52, 

INTERNMENT, 

of  belligerent  troops,  264. 
of  vessels,  268,  209. 

INTERPRETATION, 
of  treaties,  199-202. 

INTERVENTION, 

for  self-preservation,  58. 

under  treaty  of  guaranty,  61. 

on  invitation  of  a  party  to  civil  war,  62. 

under  sanction  of  a  body  of  states,  63. 

on  grounds  outside  field  of  International  law,  64. 

on  grounds  of  humanity,  64. 

for  protection  of  religion,  64. 

policy  of,  66-73. 

INVIOLABILITY, 
of  diplomat,  169. 
of  consular  oflBcers,  188. 

ITALY, 

convention  of,  as  to  the  Suez  Canal,  110. 

strain  of  diplomatic  relations  with  United  States,  230. 

treaty  with  United  States  as  to  exemption  of  vessels,  287. 


J 

JAPAN, 

entrance  to  family  of  nations,  25. 
treaty  of  guaranty  with  Great  Britain,  206. 
regulation  as  to  procedure  in  capturing  vessels,  317. 
regulations  as  to  visit  and  search,  400. 
regulations  governing  captures  at  sea,  460. 

JURISDICTION, 

nature  of,  91-92, 

over  territory  and  property,  92. 

joint,  93-95. 

over  leased  territory,  95-97. 

over  waters,  97-115. 

over  fisheries,  115-117. 

over  vessels,  117-120. 


INDEX.  605 

[The  figures  refer  to  pages.] 

JURISDICTION— Continued^ 
aerial,  120-124. 
over  nationals,  125-143. 
over  aliens,  143-145. 
exemption  from,  147-150. 
extraterritorial,  151,  152. 

JUS  GENTIUM, 
defined,  7. 

JUS  NATURALS, 
defined,  7. 

JUS  SANGUINIS, 

explained,  126,  135. 

JUS  SOLI, 

explained,  126,  135. 


KBILET,  MR., 
case  of,  165. 

KENNAN,  MR., 
case  of,  144. 

KOSZTA,  MARTIN, 
case  of,  141,  142, 


LA  ALBA  SILVER  MINING  OO., 

case  of,  227,  228. 
LAKES, 

jurisdiction  over,  103. 

LEGATION, 

right  of,  164-166. 

LEJTTERS  OF  CREDENOB. 
nature  of,  166. 
form  of,  167. 
termination  of  diplomatic  mission  by  expiration  of,  179. 

LICENSES, 

to  trade,  165. 

LIEBER, 

rules  for  government  of  armies  of  United  States,  488,  508. 

LOANS, 

by  neutral  to  belligerent  state,  257. 

LYNCHING, 

at  Tallulah,  La.,  ISa 
action  on,  139. 


G06  INDEX. 

[TTve  figures  refer  to  pagps.] 

M 

MAIL  VESSELS, 

exemption  from  visit  and  search,  402. 

^LiRGINAL  SEA, 
jurisdiction  of,  97. 

MARINE  LEAGUE, 

of  maritime  jurisdiction,  97. 

MARITIME  WAR, 

property  at  sea,  285-298. 
capture,  299-316. 

MARRIAGE, 

as  affecting  nationality,  128,  129. 

MEDIATION, 

see  Good  OflBces. 

AIERCH,  ERNEST, 
case  of,  407. 

MILITARY  ASSISTANCE, 

not  to  be  furnished  by  neutral  to  belligerent,  258-2G2: 

MILITARY  AUTHORITY, 
exercise  of,  203. 
exercise  of  in  occupied  territory,  334-338. 

inLITARY  COMMISSIONS, 
what  they  are,  341. 

MILITARY  GOVERNMENT, 

what  constitutes,  331-334. 

MILITARY  LAW, 

where  and  when  it  exists,  340,  341. 

MILITARY  OCCUPATION, 

nature  of,  329. 
government  under,  I'.ni. 
exercise  of  authority,  334. 
cessation  of,  341. 

MILITIA, 

calling  forth  of,  in  case  of  insurgency,  43. 

MINES; 

regulation  of  use,  324. 

inNISTERS, 

plenipotentiary,  159-161. 
resident,  159-161. 


INDEX.  607 

[The  figures  refer  to  pages.] 

MONROE  DOCTRINE, 

history  of,  67-68. 

President  Roosevelt's  interpretation,  (50-70. 

in  Venezuelan  controversy,  70-71. 

various  interpretations  of  the  principles,  71-73. 

MONROE,  PRESIDENT, 

statement  of  IMonroe  Doctrine,  67. 

on  the  claims  of  Russia  on  northwest  coast  of  American  con- 
tinent, 67. 

"MOST  FAVORED  NATION   CLAUSE," 
interpretations  of,  202-205. 

MORA  CLAIM, 
case  of,  218. 

MOVABLE  PROPERTY, 

of  military  use,  282.  283. 

MUNICIPALITIES, 

property  of  in  war.  281. 

MUNITIONS  OF  WAR, 

sale  of  by  neutral  state,  256. 
sale  of  by  neutral  individual,  257. 


N 


NAPOLEON  BONAPARTE, 

position,  as  to  balance  of  power,  67. 

NATURAL^BORN  SUBJECTS, 
jurisdiction  over,  126. 

NATIONALITY, 

acquisition  of,  126-134. 
abandonment  of,  135. 

NATIONALITY  OF  VESSEL, 
how  determined,  120. 

NATIONALS, 

definition,  125. 
jurisdiction  over,  12.1. 
protection  of,  136-143. 

NATURALIZATION, 

nature  of,  127. 

NAVAL  FORCES. 

exemptions  of,   149. 

NAVIGATION, 

rights  of,  108. 


608  INDEX. 

[The  figures  refer  to  pages.] 

NEKiOTIATION  OF  TREATIES, 
essentials  and  form,  194,  195. 

NETHERLANDS, 

convention  of,  as  to  Suez  Canal,  110 
rule  of  expatriation,  135. 

NEUTRALITY, 

proclamation  of,  264. 
duty  of  abstention,  256-258. 
duty  of  prevention,  258-262. 
obligation  of  toleration,  262,  263. 
duty  of  regulation,  2G3-270. 
definition  of,  385,  386. 
development  of,  386-391. 
declaration  of,  393,  394. 
division  of  subject  395,  396. 
visit  and  search  in  case  of,  397-402. 
convoy,  in  case  of,  402,  403. 
contraband,  in  case  of,  41S-438. 
blockade,  in  case  of,  439-451. 
violation  of  blockade,  451^58. 
continuous  voyage,  459-468. 
unneutral  service,  469-476. 
prize  and  prize  courts,  477-482. 

NEUTRALIZATION, 
of  states,  391-393. 

NEUTRAL  INDIVIDUALS, 
during  war,  status  of,  277. 

NEUTRAL  MERCHANT  SHIPS, 

exemptions  of,  from  visit  and  search,  401, 

NONCOMBATANTS, 
who  are,  273-276. 

NONHOSTILE  REDRESS, 
what  is,  229-237. 

NONINTERCOURSE  ACTS, 

suspension  of,  271. 

NONINTERVENTION, 
duty  of,  57-65. 

NORTH  SEA  FISHERIES, 
convention  as  to,  220-221. 

NOTIFICATION, 

of  commencement  of  war,  249. 
of  blockade,  444-446. 


INDEX.  609 

[The  figures  refer  to  pages.] 


0 

OCXiJASIONAL  CONTRABAND, 

term  sometimes  used,  424. 

OCCUPATION, 

a  method  of  acquiring  territory,  79-8L 
vessels  exempt  by,  288,  289. 
.    military,  329-331. 

OPERATION, 

of  treaties,  207-209. 

OTTOMAN  EMPIRE, 

treaty  with  United  States,  1^,  184. 

OXFORD  MANUAL  OF  LAWS  OF  WAR, 
Von  Moltke  on,  318. 


PACIFIC  BLOCKADE, 
nature  of,  235-237,  439. 
those  since  1827,  235. 

PANAMA. 

recognition  of,  30. 
PAPACY, 

Holy  See,  23. 

PAPERS, 

ship's,  404. 

PAQUETE  HABANA, 

case  of,  5,  13. 

PARIS, 

Declaration  of,  311,  434,  448. 
terms  of  Declaration  of,  487. 

PARLIAMENT  BELGE, 

case  of,  150. 

PARTNERSHIPS, 

in  time  of  war,  271. 

PAROLE, 

release  on,  349. 

PARTNERSHIP, 

suspension  of  in  war,  271. 

PASSPORT, 

document  of  identification,  145. 
given  in  time  of  war,  364. 

WiLS.lNT.L.— 39 


610  INDEX. 

[The  figures  refer  to  pages.] 

PBDRO, 

case  of,  14. 

PERFIDY, 

deceit  involving,  322. 

PERMANENT  COURT, 

of  ai-bitration,  223,  525. 

PERSONA  NON  GRATA, 
who  may  be,  165. 

PERSONS, 

status  of  in  international  law,  21. 
having  limited  status,  31. 
political  jurisdiction  over,  125-152. 
general  effect  of  war  on,  252. 
status  of,  in  war,  273  et  seq. 

PHILIPPINES, 

sale  of,  to  the  United  States,  84. 
occupation  of,  33&-337. 

PILLAGE, 

prohibited,  322,  543. 

PIUS  FUND, 
case  of,  227. 

POISON, 

use  of,  forbidden  in  war,  321. 

POLITICAL  UNIONS, 
members  of,  33-35. 

PORTO  RICO, 

after  Spanish-American  War,  342,  343. 

PORTS, 

closure  of,  47. 

POSTLIMINIUM, 

what  it  is,  379,  380. 

PREDICARIS, 

case  of,  177. 
PRE-EMPTION, 

doctrine  of,  437,  438. 
PREROGATIVES, 

of  diplomat,  175,  176. 

PRESCRIPTION, 

acquisition  of  territory  by,  82. 

PREVENTION, 

neutral  duty  of,  258-262. 


INDBX.  611 

[The  figures  refer  to  pages.] 

PRISONERS  OF  WAR, 
who  are,  3-14,  345. 
treatment  of,  345-348. 
release  of,  348-353. 
exchange  of,  450. 

PRIVATEERING, 

history  of,  310^12. 

PRIVATE  INTERNATIONAL  LAW. 
place  of,  6. 

PRIVATE  PROPERTY, 

as  affected  by  loss  of  international  status,  52. 

immovable,  281,  282. 

movable,  of  military  use,  282,  283. 

in  enemy's  jurisdiction,  283,  284. 

of  belligerents  on  the  water,  286-290. 

liability  to  capture,  290-295. 

attitude  of  United  States  toward  exemption,  291. 

PRIVATE  VESSELS, 

liability  to  capture,  286,  287. 
exemption  from  capture,  by  service,  287,  288. 
exemption  from  capture,  by  occupation,  288,  289. 
exemption  from  capture,  by  delai  de  faveur,  289,  290. 

PRIVILEGES, 

diplomatic,  169. 
consular,  187. 

PRIZE, 

courts  of,  12,  13. 

taking  of,  into  neutral  waters,  267. 

title  to,  300. 

treatment  of,  300-302. 

release  of,  302,  303. 

appropriation  of,  304,  305. 

destruction  of,  30O-30S,  482,  581. 

term  to  express  legal  capture,  477. 

procedure  as  to,  in  court,  478-482. 

money,  300,  4S0. 

sequestration  of,  411,  566. 

PRIZE  COURTS, 

national,  478-^80. 

international,  480-482,  554. 

rules  for  international  court,  481,  554,  574. 

PRIZE  MONEY, 

distribution  of,  309,  480. 


612  INDEX. 

[The  figures  re£er  to  pages.] 

PROCLAMATION, 

of  treaties,  109. 

as  meaus  of  terruinating  civil  war,  379. 

of  blockade,  444. 

of  neutrality,  303. 

of  President  McKinley  for  suspension  of  hostilities,  361. 

of  President  Roosevelt,  as  to  neutrality,  389-390. 

of  the  United  States  during  Spanish-American  War,  447. 

PROHIBITED  MEANS. 

of  Injuring  enemy,  319-322. 

PROHIBITED  METHODS, 

of  injuring  enemy,  322,  323. 

PROJECTILES, 

inflicting  unnecessary  suffering,  321. 
from  balloons,  326,  327. 

PROPERTY, 

in  general,  76-78. 

jurisdiction  over.  92. 

general  effect  of  war  on,  2.52. 

on  land,  278-284. 

of  municipalities  and  institutions,  281. 

on  water,  285-298. 

private  in  war,  291. 

destruction  of,  and  appropriation  of,  at  sea,  412. 

PROTECTOR,  THE, 
case  of,  373,  374. 

PROTECTORATES, 

states  under,  35-39. 
jurisdiction  over,  81. 

PROTOCOL, 

what  it  is.   192. 

PROVISIONS, 

when  may  be  supplied  to  belligerents,  266. 
as  conditional  contraband,  427. 

PUBLIC  BLOCKADE, 
what  it  is,  443. 

PUBLIC  BUILDINGS, 

as  immovable  public  property,  278. 

PUBLIC  INTERNATIONAL  LAW, 
of  what  it  treats,  3-6. 

PUBLIC  OBLIGATIONS, 

as  affected  by  loss  of  international  status,  50. 


INDEX.  613 

[The  figures  refer  to  pages.] 

PUBLIO  PROPEPt.TY, 

as  affected  by  loss  of  international  status,  50. 

immovable,  278,  279. 

movable,  279-281. 

of  belligerents  on  water,  liable  to  capture,  285,  286. 

PUBLIC  VESSELS, 

jurisdiction  over,  118. 

exemptions  of,  150. 

liability  of,  to  capture,  285,  286. 


RADIO-TELEGRAPHY, 

in  time  of  war,  296-298. 

RANSOM, 

bill  of,  303. 
release  on,  349. 

RATIFICATION, 

of  treaties.  197-199. 

REAL  PROPERTY. 

status  of,  in  war,  278,  279. 

RECALL, 

termination  of  mission  by,  178,  179. 
termination  of  consular  office  by,  186. 

RECAPTURE, 
of  vessel,  303. 

RECOGNITION, 

of  new  states,  26-31. 
of  belligerency,  40-43. 

RED  CROSS, 

use  of,  322,  511. 

REGULATION, 

neutral  duty  of,  263-270. 

as  to  internment  of  belligerent  troops,  264,  265. 

as  to  sojourn  of  belligerent  vessels  in  neutral  ports,  26,"),  2tjii. 

of  belligerent  action,  317-319. 

RELATIONS, 

of  insurgents  and  parent  state.  46. 
of  belligerents  and  neutrals,  396. 

RELIGION, 

protection  of,  281. 

REPRISALS, 

defined,  231,  232. 


614  INDEX. 

[Tte  figures  refer  to  pages.] 

REQUISITIONS, 
iH  kiud.  282. 

RESTRICTED  USE  OF  FORCE, 
short  of  war,  233. 

RETALIATION, 

short  of  war,  230,  231. 

RETORSION, 

defined,  230,  231. 

RIGHTS. 

of  equality,  73-75. 

of  asylum,  on  war  ships,  118. 

of  relijjion  on  grounds  of  diplomat,  172. 

of  belligereuts  and  neutrals  during  war,  270-272. 

RIVERS, 

domain  in,  86. 
jurisdiction  over,  105-107. 
as  to  blockade,  441. 

ROOSEVELT,  PRESIDENT, 
on  Monroe  Doctrine.  70. 
tendering  good  offices  to  the  Russian  and  Japanese  governments. 

219. 
neutrality  proclamation  of.  3S9,  390. 

RUSSIA, 

intervention  on  Northwest  coast,  67. 

as  to  right  of  equality,  75. 

position  as  to  maritime  and  fluvial  jurisdiction,  98. 

convention  of,  as  to  Suez  Oanal,  110. 

volunteer  navy  of,  313. 

rules  of,  as  to  contraband.  422.  423. 

declaration  of,  as  to  penalty  for  unneutral  service,  475. 


SAFE  CONDUCT, 

in  time  of  war,  364. 


SAFEGUARD, 

in  time  of  war,  364. 

SAMOA, 

joint  jurisdiction  over,  94. 

SCIENTIFIC  WORKS, 
exemption  of,  281. 

SCIENTIFIC  EXPEDITIONS, 
exemption  of,  285,  287. 


IMDBX.  615 

[The  figures  refer  to  paees.] 

SEARCH, 

see  Visit  and  Search. 

SELF-PRESERVATION, 

right  of,  55,  56. 

SERVITUDES, 

what  they  are,  153,  154. 

SHIP'S  PAPERS, 
regular,  404. 

SHIPWRECKED, 

treatment  of,  353-356. 

SICK  AND  WOUNDED, 

treatment  of,  353-356. 

SIGNAL  DISTANCE. 

what  constitutes,  309. 

SOJOURN, 

in  neutral  ports,  265. 

SOUND  DUES, 
history  of,  109. 

SOURCES  OP  INTERNATIONAL  LAW, 
explained,  9. 

SOUTH  AFRICAN  REPUBLIC, 
protection  of,  35. 

SOVEREIGN, 

exemptions  and  privileges  of,  in  foreign  countries,  148. 

SPAIN, 

convention  as  to  the  Suez  Canal,  110. 

treaty  with  United  States  as  to  immunity  of  consular  officers, 

188-190. 
treaty  with  France  as  to  termination  of  treaties,  211. 
recession  of  Louisiana,  213. 
breaking  of  diplomatic  relations  with   United  States,  230,   251, 

252. 
termination  of  treaty  of,  with  United  States,  251,  252. 
treaty  with  United  States,  352,  3.53. 

SPHERE  OF  INFLUENCE, 
nature  of,  81. 

SPIES, 

status  and  treatment  of,  275,  276,  327,  328. 

SPONSIONS, 
defined,  194. 

SPRINGBOK, 

case  of,  462,  463. 


616  INDEX. 

[The  figures  refer  to  pases.] 

STATE, 

status  of,  in  Interuational  law,  22. 

definition  of.  22. 

outside  the  family  of  nations,  32. 

neutralized,  32,  33. 

protected,  35-39. 

STRAITS, 

jurisdiction  of,  99. 
navigation  of,  108,  109. 
not  liable  to  blockade,  440. 

STRATEGIC  BLOCKADE, 
■what  it  is,  440. 

STATUS  QUO  ANTE  BELLUM, 
restoration  of,  377. 

SUBMARINE  MINES  AND  TORPEDOES. 
use  of,  forbidden  in  war,  324-326. 

SUEZ  CANAL, 
see  Canals. 

SUMMARY  PROCEDURE, 
arbitration  by,  224,  22.5. 

SUPPLIES  OF  WAR. 

not  to  be  furnished  by  neutral  state,  256,  266. 

SUZERAINTY, 

relationship  under,  37. 

SUSPENSION  OF  HOSTILITIES, 
operation  of,  361. 

SWISS  FEDERAL  COURT, 

as  to  jurisdiction  over  rivers,  107. 

SWITZERLAND, 

neutralization  of,  33. 

T 

TAXES, 

diplomatic  exemption,  171. 
consular  exemption,  187. 
tinder  military  occupation,  338. 

TELEGRAPH,  , 

status  of,  in  war,  296-298. 

TERMINATION, 

of  diplomatic  missions,  178-180. 

of  consular  service,  186,  187. 

of  treaties,  209-212. 

of  war.  366-381. 

of  blockade,  449-451. 


INDIiX.  617 

[The  figures  refer  to  pages.] 
TEKHITORIAL  DOMAIN, 

what  it  is,  7S. 
acquisition  of,  79-85. 

TERRITORY, 

acquisition  of,  79-85. 

formed  by  alluvium,  82. 

as  determined  by  rivers  and  Lakes,  etc,  86. 

jurisdiction  over,  92. 

leased,  95-97. 

transfer  of,  1.31. 

THE  THREE  FRIENDS, 
case  of,  44,  39. 

THREE-MILE  LIMIT, 

jurisdiction,  as  to,  98,  99. 

TOLERATION, 

neutral  obligation  of,  262,  263. 

TRANSFER  OF  FLAG, 

because  of  wa.r,  406,  582. 

TRANSFER  OF  PROPERTY, 

because  of  war,  406,  583. 

TRANSFER  OF  SOVEREIGNTY, 
determined  by  treaty,  378. 
of  belligerent  property  before  war,  407-409. 
after  war,  409. 

TRANSFER  OF  TERRITORY, 

as  affecting  allegiance,  131. 

TRANSFORMATION  OF  MERCHANT  VESSELS, 
in  time  of  war,  314. 

TREATIES, 

as  a  source  of  international  law,  11,  12. 

of  extradition,  14-1. 

definition  of,  191. 

otlier  forms  of,  192-194. 

validity  of,  194,  195. 

form  of  contract,  195-197. 

ratification  of,  197-199. 

interpretation  of,  199-202. 

most  favored  nation  clause,  202-205. 

of  guaranty,  205-207, 

operation  of,  207-209. 

termination  of,  209-212, 

abrogation  of,  211. 

continuation  of,  212,  213. 

general  effect  on,  of  war,  252. 

of  peace,  375. 


018  INDEX. 

[The  figures  refer  to  pages.] 

TREATY  OF  PARIS, 

provision  as  to  navigation  of  the  Danube,  114. 

TREATY  OF  PEACE, 

as  termination  of  war,  375. 
scope  of,  376,  377. 
elTect  of,  377-379. 

TREATY  RELATIONS, 

as  affected  by  loss  of  international  status,  49. 

TRENT, 

case  of,  471. 

TROOPS, 

furnishing  of  by  neutrals,  forbidden,  256. 
internment  of,  268. 

TRUCE, 

see  Flags  of  Truce. 

TURKEY, 

status  of  the  Bosphorus  and  Dardanelles,  109. 
convention  of,  as  to  Suez  Canal,  110. 

"TWENTY-FOUR  HOUR  RULE,"  265. 


UNDEFENDED  TOWNS, 

in  time  of  war,  323. 

UNIONS. 

personal,  34. 
real,  34. 
confederate,  34. 
federal.  34. 

UNITED   STATES, 

decision,  in  case  of  Paquete  Habana,  13.  14. 

Constitution  of,  as  regards  force  of  international  law,  15,  16. 

treaty  with  China.  32. 

position  of,  as  to  right  of  private  vessel  to  resist  aggression,  48. 

attitude  of,  as  to  Monroe  Doctrine,  66-73. 

intervention  of,  in  case  of  Venezuela,  70. 

decision,  in  case  of  Georgia  v.  Tennessee  Copper  Co.,  68. 

position  of,  as  to  aerial  domain,  88,  89. 

agreement  as  to  islands  of  Samoa,  93. 

lease  from  Cuba  of  coaling  stations,  97. 

position  as  to  Great  Lakes,  104. 

attitude  of,  as  to  Sound  Dues,  109. 

as  to  Dardanelles,  109. 

Clayton-Bulwer  Treaty  with  Great  Britain,  111. 

treaty  with  Republic  of  Panama,  112-113. 


INDEX.  610 

[The  figures  refer  to  pages.] 

UNITED  STATES— Continued, 

treaty  of  peace  with  Great  Britain  as  to  navigation  of  Missis- 
sippi, 114. 

treaty  witti  Germany,  as  to  disturbance  of  peace  of  port,  119. 

jurisdiction  of,  over  nationals,  126,  127. 

laws  as  to  naturalization,  12G-lo.j. 

position  of,  as  to  citizens  of  Hawaii,  134. 

treaty  with  Spain,  as  to  rights  of  nationals  in  other  states,  137. 

action  of,  on  lynching  at  Tallulah,  139. 

attitude  of,  as  to  Koszta,  141,  142. 

Court  for  China,  152. 

attitude  of,  as  to  diplomatic  agents,  163  et  seq. 

position  of,  in  case  of  the  Predicaris,  177. 

treaty  with  Ottoman  Empire,  183,  184. 

civil  service  act,  186. 

treaty  with  Spain,  as  to  immunities  of  consular  officers,  188-190. 

making  and  ratification  of  treaties  of,  19S,  199. 

decision  of,  in  case  of  De  Geofroy  v.  Riggs,  200. 

decision  of,  in  case  of  Tucker  v.  Alexandroff,  200. 

treaty  with  France,  relating  to  "most  favored  nation  clause," 
203,  204. 

treaty  with  Japan,  as  to  "most  favored  nation  clause,"  205. 

position  of,  as  to  operation  of  treaties,  207,  208. 

treaty  with  Great  Britain,  as  to  termination  of  treaties,  209. 

mediation  of,  in  Russo-Japane.se  War,  219,  220. 

pos-ition  of,  as  to  establishment  of  court  of  arbitral  justice,  226. 

action  of,  in  case  of  Chinese,  234. 

position  of,  in  case  of  Venezuela,  236. 

attitude  of,  as  to  Alabama  case,  260. 

decision  of,  in  case  of  exemption  of  private  property  in  enemy 
jurisdiction.  284. 

treaty  with  Prussia,  as  to  exemption  of  vessels,  286,  287. 

treaty  with  Italy,  as  to  exemption  of  vessels,  287. 

resolution  of,  as  to  exemption  of  private  property  at  sea,  291. 

opinion  of.  as  to  ownership  of  soil,  295. 

position  of,  in  Spanish-American  War,  as  to  appropriation  and 
destruction  of  prize,  304. 

attitude  of,  in  Spanish-American  War,  as  to  military  govern- 
ment, 333,  334. 

order  of,  as  to  occupation  of  Philippines,  .336-838. 

treaty  of  peace  with  Spain,  3-52,  3-53. 

regulations  of,  dui-ing  Civil  War,  as  to  care  of  sick  and  wounded, 
353,  354. 

protocol  of  treaty  of  peace  with  Spain,  361. 

treaty  with  Prussia.  363. 

treaty  with  Spain,  377. 

treaty  with  It.aly,  399. 

method  of  visit  and  search  during  Spanish-American  War,  400 


620  INDEX. 

[The  figures  refer  to  pages.] 

UNITED  STATES— Continued, 

position  of,  as  to  notification  of  blockade,  445. 

proclamation    in    Spanish-American   War   as    to    withdrawal   of 

neutral  vessels,  447. 
decision  as  to  maintenance  of  blockade,  448,  449. 
position  of,  as  to  national  prize  courts,  479,  480. 

UNITED  STATES  v.  HUCKABEE, 
case  of,  371,  372. 

UNNEUTRAL  SERVICE, 
definition  of,  469,  470. 
scope  of,  470-474. 
penalty  for,  474-476. 

UTI  POSSIDETIS, 
orinciple  of,  374. 


VALID  TREATY, 
essentials  of,  194. 

VENEZUELA, 

boundary  question,  70. 
pacific  blockade  of,  235,  236. 

VESSELS, 

jurisdiction  over,  117-120. 

status  of,  at  sea,  285. 

visit  and  search  of,  262,  397-402. 

liability  of,  to  capture,  286,  2,s7. 

exemption  from  capture,  by  service,  287. 

exemption  from  capture,  by  occupation,  288,  289. 

exemption  from  capture,  by  delai  de  faveur,  289,  290. 

voluntary  and  auxiliary  navy,  312-316. 

convoy,  402. 

capture  of,  404. 

treatment  of,  when  captured,  409-412. 

destruction  and  appropriation  of,  412-417 

in  blockaded  port,  446,  447. 

VIENNA,  CONGRESS  OF, 

rules  of,  as  to  diplomatic  agents,  159. 

VIOLATION  OF  BLOCKADE, 
what  constitutes,  453. 
penalty  for,  453. 
liability  for,  454r-458. 

VISIT  AND  SEARCH, 
right  of,  262. 
object  of,  397. 
exercise  of  the  right  of,  397-399. 


INDEX.  621 

[The  figures  refer  to  pages.] 

VISIT  ANT)  SEARCH— Continued, 
method  of,  399-401. 
exemption  from  and  limilaliou  of,  401,  402. 

VOLUNTEER  AND  AUXILIARY  VESSELS, 
status  of,  in  maritime  capture,  312-516. 
of  Russia,  313. 
of  Great  Britain,  314. 
of  the  United  States,  314. 
of  France,  313,  314. 

w 

WAR, 

definition  of,  241,  242. 

kinds  of,  243,  244. 

object  of,  244,  245. 

commencement  of,  245,  246. 

declaration  of,  246-248. 

date  of  commencement  of,  248,  249. 

area  and  general  effect,  250-253. 

obligations  of  belligerents  in,  254,  255. 

neutral  duty  of  abstention  in,  256-258. 

neutral  duty  of  prevention  in,  2.J.S-262. 

neutral  obligation  of  toleration  in,  262,  263. 

neutral  duty  of  regulation  in,  2(53-270. 

civil  rights  and  remedies  during,  270-272. 

persons  within  belligerent  jurisdiction  during,  273. 

combatants  and  uoncombatants,  273-276. 

neutral  individuals,  277. 

immovable  public  property,  278,  279. 

movable  public  property,  279-281. 

property  of  municipalities  and  institutions,  281. 

immovable  private  property,  281,  282. 

movable  property  of  military  use,  2.82,  283. 

private  property  in  enemy  jurisdiction,  283,  284. 

booty,  284. 

vessels,  285,  286. 

goods,  286. 

private  vessels,  286. 

vessels  exempt  by  service,  287. 

vessels  exempt  by  occupation,  288,  289. 

vessels  exempt  by  delai  de  faveur,  289,  290. 

goods  in  general,  290-295. 

means  of  telegraphic  communication,  296-298. 

maritime  capture,  299,  300. 

title  to  prize,  300. 

conducting  of  prize,  300-302. 

release  of  prize,  302,  303. 


622  INDEX. 

[The  figures  refer  to  pages.] 

WAR— Continued, 

appruiJi-iuliou  and  destruction  of  prize,  304-308. 

prize  money  and  bounty,  309,  310. 

privateers,  310-312. 

volunteei',  auxiliary,  or  subsidized  vessels,  312-316. 

regulation  of  belligerent  action,  317-319. 

prohibited  means,  319-322. 

prohibited  methods,  322,  323. 

bombardment,  323,  324. 

submarine  mines  and  torpedoes,  324-326. 

discharge  of  projectiles  and  explosives  from  balloons,  326,  327. 

spies,  327,  328. 

hostile  military  occupation,  329-331. 

military  government,  331-334. 

exercise  of  military  authority  in  occupied  territory,  334-338. 

martial  law,  339,  340. 

military  law.  courts-martial,  and  military  commissions,  340. 

cessation  of  hostile  military  occupation  and  of  military  control, 

341-343. 
prisoners  of,  344.  345. 
treatment  of  prisoners  of,  345-348. 
release  of  prisoners,  348-353. 
sick,  wounded,  and  shipwrecked.  353-356. 
nonhostile  relations  of  belligerents  in,  357. 
flags  of  truce,  357,  358. 
capitulations,  358,  359. 
armistices,  300. 

operation  of  armistices,  361,  3G2. 
cartels,  362,  363. 
safe-conducts  and  passports,  364. 
safeguards,  364. 
licenses  to  trade,  365. 
methods  of  termination  of,  366. 
conquest,  3GG-368. 
the  effect  of  conquest,  368-^372. 
cessation  of  hostilities,  373,  374. 
effect  of  cessation  of  hostilities,  374,  376. 
treaty  of  peace,  375. 
scope  of  a  treaty  of  peace,  376,  377. 
effect  of  a  treaty  of  peace,  377-379. 
proclamation,  379. 
postliminium,  379,  380. 
amnesty,  381. 

WATERS, 

jurisdiction  over,  86  et  seq. 

WESTPHALIA, 

peace  of,  9. 


INDEX.  623 

[The  figures  refer  to  pages.] 

WIRELESS  TELEGRAPHY, 
jurisdiction  of,  121. 
use  of,  in  time  of  war,  296-29S. 

WOMEN, 

nationality  of,   128,  129. 

WORKS  OF  ART, 

exemption  of,  281. 

WOUNDED, 

treatment  of,  353-356. 


intat  FUBLISHLMQ  CO.,  FBHiTlSBfl,  ST.  PAUL,  XUOL 


LAW  LIBRARY 

OF 

LOS  ANGELES  COUNTY 


iJNrVEHtiit)    .  , 


LOS  AiHQRl.Rfi 


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